Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “Ground Lease”), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “Fee Interest”), then: (a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; (b) The related lessee’s leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances; (c) The Borrower’s interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; (d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease; (e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date; (f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity; (g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor; (h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon; (i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and (j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 30 contracts
Samples: Mortgage Loan Purchase Agreement (WFRBS Commercial Mortgage Trust 2011-C5), Mortgage Loan Purchase Agreement (WFRBS Commercial Mortgage Trust 2011-C5), Mortgage Loan Purchase Agreement (WFRBS Commercial Mortgage Trust 2011-C5)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s 's knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s 's knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 29 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18), Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18), Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage PMCF/BSCMI/NLIC/PCF/PCFII Loan Seller’s 's knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s 's knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 10 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14), Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Inc), Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule B-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s leasehold 's interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, to the Purchaser and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained prior to the Closing Date); and in the event that it is so assigned, is further assignable by the Purchaser and its successors and assigns upon notice to, but without the need to obtain the consent of such lessor;
(d) Such Ground Lease is in full force and effect, and the Mortgage Loan Seller has not received, as of the Closing Date, any notice that an event of default has occurred thereunder and to the Mortgage Loan Seller's actual knowledge, there exists no condition that, but for the passage of time or cannot be unreasonably withheld; provided that the giving of notice, or both, would result in an event of default under the terms of such Ground Lease;
(e) Such Ground Lease requires the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received to give notice of any default by the lessee to the mortgagee under such Mortgage Loan provided such mortgagee has provided such lessor with notice of its lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice Lease and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; manner described in such Ground Lease and the Mortgage Loan Seller has not received any written provided such lessor with notice of default under or termination the lien of the related Mortgage in accordance with the provisions of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Except as set forth on Schedule B-18G, such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease by reason of default by the Mortgagor including termination as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest proceeds, will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default, to disturb the Mortgaged Property is located at the time possession, interest or quiet enjoyment of any subtenant of the origination lessee, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
(k) The lessor under such Ground Lease is not permitted in the absence of an uncured default to disturb the possession, interest or quiet enjoyment of the tenant in any manner, which would materially adversely affect the security provided by such Mortgage LoanGround Lease and the related Mortgage; and
(jl) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 9 contracts
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc), Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc), Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice that such Ground Lease is not in full force and the holder of such Mortgage Loan is permitted a reasonable time to cure effect or that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, The mortgagee under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the stated maturityinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are exercisable by the Borrower or by the lender upon its taking possession of the Borrower's leasehold interest, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of any default or as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 9 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2005-4), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2007-2), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2005-4)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The the Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as of the Closing Date;
either (fi) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee that is susceptible to cure by the mortgagee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ix) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jxi) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 9 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Comm Mort Ps THR Certs Ser 2003-Key1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice (nor is the Seller otherwise aware) that such Ground Lease is not in full force and the holder of such Mortgage Loan is permitted a reasonable time to cure effect or that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, The mortgagee under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the stated maturityinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are exercisable by the Borrower or by the lender upon its taking possession of the Borrower's leasehold interest, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of any default or as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 8 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2005-3), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2005-6), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2006-4)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule C-1:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Leasedefaults, if any, on the lessor has received notice of the lien part of the related Mortgage in accordance with the provisions of such Ground Leaselessee have been cured;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice Such Ground Lease is in full force and effect, and the holder of such Mortgage Loan is permitted a reasonable time to cure Seller has not received actual notice that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate any delinquent rental payment has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the ;
(f) The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a the mortgagee under such Mortgage Loan upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related MortgageMortgage Loan Documents, taken together, any related casualty insurance proceeds proceeds, other than de minimis amounts for minor casualties, with respect to the leasehold interest will be applied either either: (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee under such Mortgage Loan or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial or multifamily mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan Documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial or multifamily mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted under the terms thereof, in the absence of an uncured default (after notice to the mortgagee under such Mortgage Loan and the expiration of the applicable cure period), to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage; and
(jl) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 8 contracts
Samples: Mortgage Loan Purchase Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1), Mortgage Loan Purchase Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1), Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The Borrower’s upon foreclosure of such Mortgage Loan (or acceptance of a deed in lieu thereof), the Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as of the Closing Date;
either (fi) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Mortgagor's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related BorrowerMortgagor, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee that is susceptible to cure by the mortgagee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ix) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jxi) Such such Ground Lease provides that (i) it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and (ii) any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 6 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Mkb2), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2004-Bpc1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Mkb2)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then, except as otherwise set forth on Schedule C-1:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The the Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as of the Closing Date;
either (fi) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee that is susceptible to cure by the mortgagee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ix) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jxi) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 5 contracts
Samples: Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mor Sec Corp Com Cer Ser 2003-C3), Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mor Sec Corp Com Cer Ser 2003-C3), Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mor Sec Corp Com Cer Ser 2003-C3)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Leasedefaults, if any, on the lessor has received notice of the lien part of the related Mortgage in accordance with the provisions of such Ground Leaselessee have been cured;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice that such Ground Lease is not in full force and effect or that any material default has occurred under such Ground Lease, and the holder lessor under such Ground Lease has been sent notice of such Mortgage Loan is permitted a reasonable time to cure any default or breach the lien evidenced by the lessee thereunder, including such time as is necessary to gain possession Mortgage in accordance with the terms of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the ;
(f) The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under Except as described on Schedule C-18(i), under the terms of such Ground Lease and the related MortgageMortgage Loan Documents, taken together, any related casualty insurance proceeds proceeds, other than de minimis amounts for minor casualties, with respect to the leasehold interest will be applied either either: (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan Documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage; and
(jl) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (Commercial Mortgage Pass THR Cert Ser 2001-Ckn5), Mortgage Loan Purchase Agreement (Commercial Mortgage Pass THR Cert Ser 2001-Ckn5), Mortgage Loan Purchase Agreement (Commercial Mortgage Pass THR Cert Ser 2001-Ckn5)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;; PMCF/BSCMI/NLIC/PCF/PCFII
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s 's knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s 's knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors PMCF/BSCMI/NLIC/PCF/PCFII or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 4 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr15), Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr15), Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr15)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The Borrower’s upon foreclosure of such Mortgage Loan (or acceptance of a deed in lieu thereof), the Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as of the Closing Date;
either (fi) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Mortgagor's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related BorrowerMortgagor, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee that is susceptible to cure by the mortgagee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related MortgageMortgage or related Mortgage Loan documents, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;where
(ix) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jxi) Such such Ground Lease provides that (i) it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and (ii) any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then, except as otherwise set forth on SCHEDULE C-18:
(a) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(b) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The the Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor such Ground Lease is in full force and effect, and, to the Seller's knowledge, no material default has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate occurred under such Ground Lease;
(e) In connection with such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if under such Mortgage Loan fully or substantially amortizes by is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the stated maturityinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such such Ground Lease either (i) has an original term which extends not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan, or (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan and has extension options that are exercisable by the lender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp), Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp), Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Leasehold Estate Only. If any Mortgage Loan is secured secured, in whole or in part, by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof property (the “"Fee Interest”"), then, except as otherwise specified on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease, provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder defaults, if any, on the part of the related lessee have been paid). If required by cured;
(d) Such Ground Lease is in full force and effect and the Seller has not received any notice that any material default has occurred under such Ground Lease, and the lessor under such Ground Lease has received been sent notice of the lien of evidenced by the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder terms of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the ;
(f) The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds proceeds, other than de minimus amounts for minor casualties, with respect to the leasehold interest will be applied either either: (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of the Ground Lease and the related Mortgage, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law and subject to any rights to require the improvements to be rebuilt);
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial or multifamily, as applicable, mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage; and
(jl) Such Ground Lease may not be materially amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Salomon Brothers Mortgage Securities Vii Inc), Mortgage Loan Purchase Agreement (Salomon Brothers Mortgage Securities Vii Inc), Mortgage Loan Purchase Agreement (Salomon Brothers Mortgage Securities Vii Inc)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “Ground Lease”), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “Fee Interest”), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The BorrowerMortgagor’s interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower Mortgagor was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related BorrowerMortgagor, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (CFCRE Commercial Mortgage Trust 2011-C2), Mortgage Loan Purchase Agreement (CFCRE Commercial Mortgage Trust 2011-C2), Mortgage Loan Purchase Agreement (CCRE Commercial Mortgage Securities, L.P.)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) To the Seller's knowledge, the Ground Lease is in full force and effect as of the Closing Date and, to the Seller's knowledge, there is no material default under such Ground Lease;
(e) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such . Such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan; or, or if not 20 years, at least 10 years if beyond such Mortgage Loan fully or substantially amortizes by the stated maturitymaturity date;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied applied, either (i) to the repair or restoration of all or part of the related Mortgaged Property, Property with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage loan lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 3 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc)
Leasehold Estate Only. If any Mortgage Loan is secured by the ---------------------- interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule B-18:
(a) a. Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) b. The related lessee’s leasehold 's interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) c. The Borrower’s Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, to the Purchaser and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained prior to the Closing Date); and in the event that it is so assigned, is further assignable by the Purchaser and its successors and assigns upon notice to, but without the need to obtain the consent of such lessor;
d. Such Ground Lease is in full force and effect, and the Mortgage Loan Seller has not received, as of the Closing Date, any notice that an event of default has occurred thereunder and to the Mortgage Loan Seller's actual knowledge, there exists no condition that, but for the passage of time or cannot be unreasonably withheld; provided that the giving of notice, or both, would result in an event of default under the terms of such Ground Lease;
e. Such Ground Lease requires the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received to give notice of any default by the lessee to the mortgagee under such Mortgage Loan provided such mortgagee has provided such lessor with notice of its lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice Lease and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; manner described in such Ground Lease and the Mortgage Loan Seller has not received any written provided such lessor with notice of default under or termination the lien of the related Mortgage in accordance with the provisions of such Ground Lease; to the ;
f. The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge;
g. Except as set forth on Schedule B-18G, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) h. Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease by reason of default by the Mortgagor including termination as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(h) i. Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest proceeds, will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(i) j. Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default, to disturb the Mortgaged Property is located at the time possession, interest or quiet enjoyment of any subtenant of the origination lessee, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
k. The lessor under such Ground Lease is not permitted in the absence of an uncured default to disturb the possession, interest or quiet enjoyment of the tenant in any manner, which would materially adversely affect the security provided by such Mortgage LoanGround Lease and the related Mortgage; and
(j) l. Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc), Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The Borrower’s upon foreclosure of such Mortgage Loan (or acceptance of a deed in lieu thereof), the Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser Trustee upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as has a currently effective term (including any options exercisable by the holder of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interestrelated Mortgage) that extends not less than 20 years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related BorrowerMortgagor, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee that is susceptible to cure by the mortgagee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ix) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jxi) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2004-Key2), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2004-Key2)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded as of the Closing Date; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(b) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The the Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor such Ground Lease is in full force and effect, and, to the Seller's knowledge, no material default has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate occurred under such Ground Lease;
(e) In connection with such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if under such Mortgage Loan fully or substantially amortizes by is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the stated maturityinterest of the lessee under such Ground Lease through legal proceedings) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such such Ground Lease either (i) has an original term which extends not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan, or (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan and has extension options that are exercisable by the lender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Commercial Mortgage Pass Through Cert Series 2002-Key2), Mortgage Loan Purchase Agreement (Commercial Mortgage Pass Through Cert Series 2002-Key2)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The Borrower’s upon foreclosure of such Mortgage Loan (or acceptance of a deed in lieu thereof), the Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as of the Closing Date;
either (fi) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Mortgagor's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related BorrowerMortgagor, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee that is susceptible to cure by the mortgagee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related MortgageMortgage or related Mortgage Loan documents, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan), and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.or
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule B-18:
(a1) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b2) The related lessee’s leasehold 's interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c3) The Borrower’s Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, to the Purchaser and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained prior to the Closing Date); and in the event that it is so assigned, is further assignable by the Purchaser and its successors and assigns upon notice to, but without the need to obtain the consent of such lessor;
(4) Such Ground Lease is in full force and effect, and the Mortgage Loan Seller has not received, as of the Closing Date, any notice that an event of default has occurred thereunder and to the Mortgage Loan Seller's actual knowledge, there exists no condition that, but for the passage of time or cannot be unreasonably withheld; provided that the giving of notice, or both, would result in an event of default under the terms of such Ground Lease;
(5) Such Ground Lease requires the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received to give notice of any default by the lessee to the mortgagee under such Mortgage Loan provided such mortgagee has provided such lessor with notice of its lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice Lease and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; manner described in such Ground Lease and the Mortgage Loan Seller has not received any written provided such lessor with notice of default under or termination the lien of the related Mortgage in accordance with the provisions of such Ground Lease; to the ;
(6) The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f7) Such Except as set forth on Schedule B-18G, such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) 8) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease by reason of default by the Mortgagor including termination as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(h9) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest proceeds, will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(i10) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default, to disturb the Mortgaged Property is located at the time possession, interest or quiet enjoyment of any subtenant of the origination lessee, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
(11) The lessor under such Ground Lease is not permitted in the absence of an uncured default to disturb the possession, interest or quiet enjoyment of the tenant in any manner, which would materially adversely affect the security provided by such Mortgage LoanGround Lease and the related Mortgage; and
(j12) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (GMAC Commercial Mortgage Securities Inc. Series 2004-C2), Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s 's knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s 's knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.has
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Inc), Mortgage Loan Purchase and Sale Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice that such Ground Lease is not in full force and the holder of such Mortgage Loan is permitted a reasonable time to cure effect or that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mort Pass THR Certs Ser 2002-Pb2), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mort Pass THR Certs Ser 2002-Pb2)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “Ground Lease”), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “Fee Interest”), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been Ex. C-9 obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement, Mortgage Loan Purchase Agreement
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) To the Seller's knowledge, the Ground Lease is in full force and effect as of the Closing Date and, to the Seller's knowledge, there is no material default under such Ground Lease;
(e) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such . Such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan; or, or 10 if not 20 years, at least 19 years if beyond such Mortgage Loan fully or substantially amortizes by the stated maturitymaturity date;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied applied, either (i) to the repair or restoration of all or part of the related Mortgaged Property, Property with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage loan lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Leasehold Estate Only. If any a Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material any portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingduly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related MortgageMortgage and does not prohibit the current use of the related Mortgaged Property by such lessee; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage FileFile and no change in the terms of such Ground Lease has occurred since the date due diligence materials with respect to such Mortgage Loan were shipped by the Seller for delivery to GMACCM as indicated on Schedule VI hereto;
(b) The related lessee’s leasehold interest in the portion of the related Mortgaged Property covered by such Such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted EncumbrancesEncumbrances and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, to the Depositor and is thereafter further assignable by, the Purchaser its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or canobtained) and, in the event that it is so assigned, is further assignable to the Trustee and its successors and assigns upon notice to, but without the need to obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and the Seller has not be unreasonably withheld; provided received as of the date hereof actual notice that any material default has occurred under such Ground Lease and the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received sent notice of the lien evidenced by the Mortgage in accordance with the terms of the related Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan (provided that such mortgagee has provided the lessor with notice of its lien in accordance with the provisions of such Ground Lease);
(df) The Either (i) the related ground lessor has agreed subordinated its interest in the related Mortgaged Property to provide the holder of the Mortgage Loan notice and the holder of mortgagee under such Mortgage Loan or (ii) such mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Propertyinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, by foreclosure or otherwise, if possession which is necessary to effect curable after the receipt of notice of any such curedefault, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease either has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty years beyond the stated maturity amortization term of the related such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by provides for payments of interest only, extends not less than twenty years beyond the stated maturitymaturity date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a the mortgagee under such Mortgage Loan upon termination of such Ground Lease as a result of a for any reason, including rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with (other than in respect to the leasehold interest of a total or substantially total loss or taking) will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee under such Mortgage Loan or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the such Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on lender; and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default (after notice to lender and the expiration of the applicable grace period), to disturb the possession, interest or quiet enjoyment of any lessee in the relevant portion of the Mortgaged Property is located at subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the time of security provided by the origination of such Mortgage Loan; andrelated Mortgage;
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns;
(l) Unless otherwise set forth in such Ground Lease, provided that such mortgagee has provided Ground Lease does not permit any increase in the amount of rent payable by the ground lessor with notice lessee thereunder during the term of its lien in accordance with the such Mortgage Loan; and
(m) The terms of such Ground LeaseLease have not been waived, modified, satisfied, impaired, canceled, subordinated or rescinded in any manner which materially interferes with the security intended to be provided by the related Mortgage.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof property (the “"Fee Interest”"), then; except as otherwise set for on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or if the related Title Policy is not yet issued, based on the pro forma title policy or commitment described in Paragraph 8 above), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances and such Ground Lease, provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Leasedefaults, if any, on the lessor has received notice of the lien part of the related Mortgage in accordance with the provisions of such Ground Leaselessee have been cured;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice that such Ground Lease is not in full force and effect or that any material default has occurred under such Ground Lease and the holder lessor under such Ground Lease has been sent notice of such Mortgage Loan is permitted a reasonable time to cure any default or breach the lien evidenced by the lessee thereunder, including such time as is necessary to gain possession Mortgage in accordance with the terms of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the ;
(f) The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 ten (10) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds proceeds, other than de minimis amounts for minor casualties, with respect to the leasehold interest will be applied either either: (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of the Ground Lease and the related Mortgage, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt.;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and;
(jk) The lessor under such Ground Lease is not permitted to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
(l) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Credit Suisse Fr Bs Mor Sec Cp Com Mor Ps Th Ce Ser 2001-Ck1)
Leasehold Estate Only. If any Mortgage Schedule A-1 Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof property (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or if the related Title Policy is not yet issued, based on the pro forma title policy or commitment described in Paragraph 8 above), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances and such Ground Lease, provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder defaults, if any, on the part of the related lessee have been paidcured;
(d) Except in the case of the Schedule A-1 Loan secured by the Mortgaged Property identified on the Mortgage Loan Schedule as Stonewood Center Mall (as to which the Borrower had failed to maintain certain required insurance, but as of the Closing Date has cured such failure). If required by , the Seller has not received, as of the Closing Date, actual notice that such Ground Lease, Lease is not in full force and effect or that any material default has occurred under such Ground Lease and the lessor under such Ground Lease has received been sent notice of the lien of evidenced by the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder terms of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of such Mortgage Loan, any default by the related ground lessor provided an estoppel lessee to the originator confirming that the related Borrower was not then in default mortgagee under such Ground Lease; Schedule A-1 Loan. Furthermore, except in the case of the Schedule A-1 Loans secured by the Mortgaged Properties identified on the Mortgage Loan Schedule as Stonewood Center Mall and Hampton Inn & Suites, respectively, such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Schedule A-1 Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such The mortgagee under such Schedule A-1 Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Except in the case of the Schedule A-1 Loan secured by the Mortgaged Property identified on the Mortgage Loan Schedule as Hampton Inn & Suites, such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 ten (10) years beyond the stated maturity end of the related Mortgage amortization term of such Schedule A-1 Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Schedule A-1 Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under Except as described on Schedule C-18(i), under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds proceeds, other than de minimis amounts for minor casualties, with respect to the leasehold interest will be applied either either: (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Schedule A-1 Loan together with any accrued interest thereon. Under the terms of the Ground Lease and the related Mortgage, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Schedule A-1 Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt.;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Schedule A-1 Loan; and;
(jk) The lessor under such Ground Lease is not permitted to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
(l) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Schedule A-1 Loan and, except in the case of the Schedule A-1 Loans secured by the Mortgaged Properties identified on the Mortgage LoanLoan Schedule as 000 Xxxxx Xxxxxx and Hampton Inn & Suites, and respectively, that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Credit Suisse Fr Bs Mor Sec Cp Com Mor Ps Th Ce Ser 2001-Ck1)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest --------------------- of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule B-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s leasehold 's interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, to the Purchaser and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained prior to the Closing Date); and in the event that it is so assigned, is further assignable by the Purchaser and its successors and assigns upon notice to, but without the need to obtain the consent of such lessor;
(d) Such Ground Lease is in full force and effect, and the Mortgage Loan Seller has not received, as of the Closing Date, any notice that an event of default has occurred thereunder and to the Mortgage Loan Seller's actual knowledge, there exists no condition that, but for the passage of time or cannot be unreasonably withheld; provided that the giving of notice, or both, would result in an event of default under the terms of such Ground Lease;
(e) Such Ground Lease requires the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received to give notice of any default by the lessee to the mortgagee under such Mortgage Loan provided such mortgagee has provided such lessor with notice of its lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice Lease and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; manner described in such Ground Lease and the Mortgage Loan Seller has not received any written provided such lessor with notice of default under or termination the lien of the related Mortgage in accordance with the provisions of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Except as set forth on Schedule B-18G, such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease by reason of default by the Mortgagor including termination as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest proceeds, will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default, to disturb the Mortgaged Property is located at the time possession, interest or quiet enjoyment of any subtenant of the origination lessee, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
(k) The lessor under such Ground Lease is not permitted in the absence of an uncured default to disturb the possession, interest or quiet enjoyment of the tenant in any manner, which would materially adversely affect the security provided by such Mortgage LoanGround Lease and the related Mortgage; and
(jl) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Leasehold Estate Only. If any With respect to Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessorNo. GA 19942, a “Ground Lease”), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “Fee Interest”), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recording; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
Military Circle: (b) The related lessee’s leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose provide that it shall remain superior to any restrictions mortgage or other lien upon the related fee interest, although the title policy did not reflect any such existing mortgage or other lien on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located fee estate at the time closing of the origination of such Mortgage Loan; and
, (e) although the Ground Lease does require copies of notices of default be sent to Mortgagee, the Ground Lease does not require that notice of termination be delivered to Mortgagee, unless it is in connection with Mortgagor's exercise of its termination option in 2010, (j, k) Such the Ground Lease does not contain a quiet enjoyment covenant by ground lessor and (l) the Ground Lease does not provide that it may not be amended or modified without Mortgagee's consent. With respect to Mortgage Loan No. DBM 20300, Executive Airport Business Center: (b) the Ground Lease does not specifically provide that it shall be superior to any mortgage or other lien upon the related Fee Interest, but contains language to the effect that nothing in the lease shall be deemed to impose upon the leasehold interest the superiority of the lien of any such amendment fee mortgage, (i) any insurance proceeds payable due to the destruction or modification damage to any of the Premises will be payable to and deposited in a commercial national bank as trustee located in Fort Lauderdale, FL that is selected by the Landlord, not by the Mortgagee; the Ground Lease also states that any condemnation proceeds shall be effective against used by the mortgagee Tenant for restoration purposes, but does not require any condemnation proceeds to be applied first to the payment of outstanding principal interest on the Mortgage Loan; (l) the Ground Lease is silent with respect to amendments and modifications without the Leasehold Mortgagee's prior written consent consent, but the Mortgage Loan is supported by a non-recourse guarantee that holds the loan's sponsor personally liable for losses resulting from any amendment and/or modification of the mortgagee under such Mortgage Loan, Ground Lease without lender's consent and any such action without such consent is for application of insurance proceeds or condemnation awards not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Leaseloan documents.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “Ground Lease”"GROUND LEASE"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “Fee Interest”"FEE INTEREST"), then, except as otherwise set forth on SCHEDULE C-18:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The the Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided PROVIDED that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as of the Closing Date;
either (fi) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than DE MINIMIS amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ix) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jxi) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “Ground Lease”"GROUND LEASE"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “Fee Interest”"FEE INTEREST"), then:
(a) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(b) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The the Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided PROVIDED that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor such Ground Lease is in full force and effect, and, to the Seller's knowledge, no material default has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate occurred under such Ground Lease;
(e) In connection with such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if under such Mortgage Loan fully or substantially amortizes by is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the stated maturityinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such such Ground Lease either (i) has an original term which extends not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan, or (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan and has extension options that are exercisable by the lender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds (other than DE MINIMIS amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Leasehold Estate Only. If Except as otherwise set forth on Schedule C-18, if any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice that such Ground Lease is not in full force and the holder of such Mortgage Loan is permitted a reasonable time to cure effect or that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 ten (10) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than ten (10) years beyond the Stated Maturity Date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Prudential Securities Sec Fin Corp Mor Pas THR Cer 2001-C1)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(ai) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File; and if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(bii) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(ciii) The Borrower’s upon foreclosure of such Mortgage Loan (or acceptance of a deed in lieu thereof), the Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by ;
(iv) such Ground LeaseLease is in full force and effect, and, to the lessor Seller's knowledge, no material default has received notice of the lien of the related Mortgage in accordance with the provisions of occurred under such Ground Lease;
(dv) The related ground such Ground Lease requires the lessor has agreed thereunder to provide the holder give notice of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to ;
(vi) the mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, ;
(vii) such Ground Lease is in full force and effect as of the Closing Date;
either (fi) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Mortgagor's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gviii) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease for any reason, including as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related BorrowerMortgagor, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee that is susceptible to cure by the mortgagee under such Ground Lease following notice thereof from the lessor;
(hix) Under under the terms of such Ground Lease and the related MortgageMortgage or related Mortgage Loan documents, taken together, any related casualty insurance proceeds (other than de minimis amounts for minor casualties) with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ix) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jxi) Such such Ground Lease provides that (i) it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and (ii) any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice that such Ground Lease is not in full force and the holder of such Mortgage Loan is permitted a reasonable time to cure effect or that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, The mortgagee under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the stated maturityinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are exercisable by the Borrower or by the lender upon its taking possession of the Borrower's leasehold interest, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of any default or as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice that such Ground Lease is not in full force and the holder of such Mortgage Loan is permitted a reasonable time to cure effect or that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 twenty (20) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 10th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of any default or as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then, except as set forth on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid);
(d) The Seller has not received, as of the Closing Date, actual notice that such Ground Lease is not in full force and effect or that any material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. If In addition, if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder. Furthermore, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 ten (10) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than ten (10) years beyond the Stated Maturity Date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Commercial Mortgage Pass Through Ser 2001-Ck3)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then:
(a) Such such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The the Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder defaults, if any, on the part of the related lessee have been paid). If required by cured;
(d) such Ground Lease is in full force and effect, the Additional Party has not received, as of the Closing Date, actual notice that such Ground Lease is not in full force and effect or that any material default has occurred under such Ground Lease, and the lessor under such Ground Lease has received been sent notice of the lien of evidenced by the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder terms of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; and such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such the mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) except as described on Schedule C-18 hereto, such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under under the terms of such Ground Lease and the related MortgageMortgage Loan Documents, taken together, any related casualty insurance proceeds proceeds, other than de minimis amounts for minor casualties, with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon; and under the terms of such Ground Lease and the related Mortgage Loan Documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan;
(k) the lessor under such Ground Lease is not permitted to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage; and
(jl) Such such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (CSFB Mortgage Sec Corp Comm Mort Ps THR Cert Ser 2003-Ck2)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
; (b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
; (c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
; (d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate that such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming Lease is not in full force and effect or that the related Borrower was not then in any material default has occurred under such Ground Lease; (e) Such Ground Lease requires the lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the (f) The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(g) Such Ground Lease, together with extension options that are exercisable by the Borrower or by the lender upon its taking possession of the Borrower's leasehold interest, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan; (h) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of any default or as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
; (hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
; (ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
and (jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then, except as otherwise set forth on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid);
(d) The Seller has not received, as of the Closing Date, actual notice that such Ground Lease is not in full force and effect or that any material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. If In addition, if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder. Furthermore, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 ten (10) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than ten (10) years beyond the Stated Maturity Date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Commercial Mortgage Pass Through Ser 2001-Ck3)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The Based on the related Title Policy (or, if not yet issued, a pro forma title policy or a "marked up" commitment), the related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice (nor is the Seller otherwise aware) that such Ground Lease is not in full force and the holder of such Mortgage Loan is permitted a reasonable time to cure effect or that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, The mortgagee under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the stated maturityinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are exercisable by the Borrower or by the lender upon its taking possession of the Borrower's leasehold interest, if exercised, would cause the term of such Ground Lease to extend not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of any default or as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and;
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with ; and
(l) Under the terms of such Ground LeaseLease and the related Mortgage, taken together, any related condemnation proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon.
Appears in 1 contract
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid);
(d) The Seller has not received, as of the Closing Date, actual notice that such Ground Lease is not in full force and effect or that any material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. If In addition, if required by such Ground Lease, the lessor thereunder has received notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder. Furthermore, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 ten (10) years beyond the stated maturity Stated Maturity Date of the related such Mortgage Loan, or 10 years if (ii) has an original term which does not end prior to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan fully or substantially amortizes and has extension options that are exercisable by the stated maturitylender upon its taking possession of the Borrower's leasehold interest and that, if exercised, would cause the term of such Ground Lease to extend not less than ten (10) years beyond the Stated Maturity Date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan; and
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Commercial Mortgage Pass Through Ser 2001-Ck3)
Leasehold Estate Only. If any a Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material any portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingduly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related MortgageMortgage and does not prohibit the current use of the related Mortgaged Property by such lessee; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage FileFile and no change in the terms of such Ground Lease has occurred since the date due diligence materials with respect to such Mortage Loan were shipped by the Seller for delivery to GMACCM as indicated on Schedule VI hereto;
(b) The related lessee’s leasehold interest in the portion of the related Mortgaged Property covered by such Such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted EncumbrancesEncumbrances and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, to the Depositor and is thereafter further assignable by, the Purchaser its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or canobtained) and, in the event that it is so assigned, is further assignable to the Trustee and its successors and assigns upon notice to, but without the need to obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and the Seller has not be unreasonably withheld; provided received as of the date hereof actual notice that any material default has occurred under such Ground Lease and the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received sent notice of the lien evidenced by the Mortgage in accordance with the terms of the related Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan (provided that such mortgagee has provided the lessor with notice of its lien in accordance with the provisions of such Ground Lease);
(df) The Either (i) the related ground lessor has agreed subordinated its interest in the related Mortgaged Property to provide the holder of the Mortgage Loan notice and the holder of mortgagee under such Mortgage Loan or (ii) such mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Propertyinterest of the lessee under such Ground Lease) to cure any default under such Ground Lease, by foreclosure or otherwise, if possession which is necessary to effect curable after the receipt of notice of any such curedefault, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease either has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty years beyond the stated maturity amortization term of the related such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by provides for payments of interest only, extends not less than twenty years beyond the stated maturitymaturity date of such Mortgage Loan;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a the mortgagee under such Mortgage Loan upon termination of such Ground Lease as a result of a for any reason, including rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with (other than in respect to the leasehold interest of a total or substantially total loss or taking) will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee under such Mortgage Loan or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the such Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on lender; and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default (after notice to lender and the expiration of the applicable grace period), to disturb the possession, interest or quiet enjoyment of any lessee in the relevant portion of the Mortgaged Property is located at subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the time of security provided by the origination of such Mortgage Loan; andrelated Mortgage;
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns;
(l) Unless otherwise set forth in such Ground Lease, provided that such mortgagee has provided Ground Lease does not permit any increase in the amount of rent payable by the ground lessor with notice lessee thereunder during the term of its lien in accordance with the such Mortgage Loan; and
(m) The terms of such Ground LeaseLease have not been waived, modified, satisfied, impaired, canceled, subordinated or rescinded in any manner which materially interferes with the security intended to be provided by the related Mortgage.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule B-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s leasehold 's interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, to the Purchaser and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained prior to the Closing Date); and in the event that it is so assigned, is further assignable by the Purchaser and its successors and assigns upon notice to, but without the need to obtain the consent of such lessor;
(d) Such Ground Lease is in full force and effect, and the Mortgage Loan Seller has not received, as of the Closing Date, any notice that an event of default has occurred thereunder and to the Mortgage Loan Seller's actual knowledge, there exists no condition that, but for the passage of time or cannot be unreasonably withheld; provided that the giving of notice, or both, would result in an event of default under the terms of such Ground Lease;
(e) Such Ground Lease requires the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received to give notice of any default by the lessee to the mortgagee under such Mortgage Loan provided such mortgagee has provided such lessor with notice of its lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice Lease and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; manner described in such Ground Lease and the Mortgage Loan Seller has not received any written provided such lessor with notice of default under or termination the lien of the related Mortgage in accordance with the provisions of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Except as set forth on Schedule B-18G, such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease by reason of default by the Mortgagor including termination as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest proceeds, will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default, to disturb the Mortgaged Property is located at the time possession, interest or quiet enjoyment of any subtenant of the origination of such Mortgage Loan; andlessee, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
(jk) The lessor under such Ground Lease is not permitted in the absence of an uncured default to disturb the possession, interest or quiet enjoyment of the tenant in any manner, which would materially adversely affect the security provided by such Ground Lease and the related Mortgage; and 2002-C2 GSMC MLPA B-11
(l) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Leasehold Estate Only. If any Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule C-1-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Leasedefaults, if any, on the lessor has received notice of the lien part of the related Mortgage in accordance with the provisions of such Ground Leaselessee have been cured;
(d) The related ground lessor Such Ground Lease is in full force and effect, and the Seller has agreed to provide the holder not received, as of the Mortgage Loan Closing Date, actual notice and the holder of such Mortgage Loan is permitted a reasonable time to cure that any material default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate has occurred under such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the ;
(f) The mortgagee under such Mortgage Loan Seller’s knowledgeis permitted a reasonable opportunity (including, there is no material where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related MortgageMortgage Loan Documents, taken together, any related casualty insurance proceeds proceeds, other than de minimis amounts for minor casualties, with respect to the leasehold interest will be applied either either: (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan Documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on a similar mortgaged property in the lending area where the related Mortgaged Property is located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage; and
(jl) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Credit Suisse First Boston Mortgage Sec Corp 2001-Ck6)
Leasehold Estate Only. If any the Mortgage Loan is secured secured, in whole or in part, by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof property (the “"Fee Interest”"), then, except as otherwise specified on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s 's leasehold interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease, provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, the Purchaser upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheldobtained); provided that such Ground Lease has not been terminated and all amounts owed thereunder defaults, if any, on the part of the related lessee have been paid). If required by cured;
(d) Such Ground Lease is in full force and effect and the Seller has not received any notice that any material default has occurred under such Ground Lease, and the lessor under such Ground Lease has received been sent notice of the lien of evidenced by the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder terms of the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with Such Ground Lease requires the origination lessor thereunder to give notice of such any default by the lessee to the mortgagee under the Mortgage Loan. Furthermore, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such the Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; manner described in such Ground Lease;
(f) The mortgagee under the Mortgage Loan Seller has not received any written notice is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of default the interest of the lessee under or termination of such Ground Lease; ) to the Mortgage Loan Seller’s knowledge, there is no material cure any default under such Ground Lease and no condition thatLease, but for which is curable after the passage receipt of time or giving notice of noticeany such default, would result in a material default under before the terms of lessor thereunder may terminate such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(fg) Such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of the Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, Borrower unless the mortgagee under such the Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessor;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds proceeds, other than de minimus amounts for minor casualties, with respect to the leasehold interest will be applied either either: (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of the Ground Lease and the related Mortgage, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law and subject to any rights to require the improvements to be rebuilt);
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial or multifamily, as applicable, mortgage lender on a similar mortgaged property in the lending area where the Mortgaged Property is located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the possession, interest or quiet enjoyment of the lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage; and
(jl) Such Ground Lease may not be materially amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Salomon Brothers Mortgage Securities Vii Inc)
Leasehold Estate Only. If any a Mortgage Loan is secured by the interest of a Borrower as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof (the “"Fee Interest”"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s leasehold interest in the portion of the related Mortgaged Property covered by such Such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower’s 's interest in such Ground Lease is assignable to, and is thereafter further assignable by, to the Purchaser and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained or cannot be unreasonably withheld; ) and, in the event that it is so assigned, is further assignable to the Purchaser and its successors and assigns upon notice to, but without the need to obtain the consent of, such lessor;
(d) At the date of origination of the Mortgage Loan, such Ground Lease was in full force and effect, and the Seller has not received as of the Closing Date actual notice that any material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of any default by the lessee to the mortgagee under such Mortgage Loan (provided that such Ground Lease mortgagee has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, provided the lessor has received with notice of the its lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice ), and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the such mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; the Mortgage Loan Seller has not received any written notice of default under or termination of manner described in such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Either (i) the related ground lessor has subordinated its interest in the related Mortgaged Property to the mortgagee under such Mortgage Loan or (ii) such mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the mortgagee if it takes possession of such leasehold interest) that which extends not less than 20 ten years beyond the stated maturity Stated Maturity Date of such Mortgage Loan or (ii) has an original term which does not end prior to the third anniversary of the Stated Maturity Date of such Mortgage Loan and has extension options that, if exercised, would cause the term of such Ground Lease to extend not less than ten years beyond the Stated Maturity Date of the related Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a the mortgagee under such Mortgage Loan upon termination of such Ground Lease as a result of a for any reason, including rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with (other than in respect to the leasehold interest of a total or substantially total loss or taking) will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee under such Mortgage Loan or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the such Mortgage Loan together with any accrued interest thereon;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on lender; and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default, to disturb the possession, interest or quiet enjoyment of any lessee in the relevant portion of the Mortgaged Property is located at subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the time of security provided by the origination of such Mortgage Loan; andrelated Mortgage;
(jk) Such Ground Lease may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, and any such action without such consent is not binding on such mortgagee, its successors or assigns;
(l) Unless otherwise set forth in such Ground Lease, provided that such mortgagee has provided Ground Lease does not permit any increase in the amount of rent payable by the ground lessor with notice lessee thereunder during the term of its lien in accordance with the such Mortgage Loan; and
(m) The terms of such Ground LeaseLease have not been waived, modified, satisfied, impaired, canceled, subordinated or rescinded in any manner which materially interferes with the security intended to be provided by the related Mortgage.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Leasehold Estate Only. If any Mortgage Loan is secured by the ---------------------- interest of a Borrower Mortgagor as a lessee under a ground lease of all or a material portion of a Mortgaged Property (together with any and all written amendments and modifications thereof and any and all estoppels from or other agreements with the ground lessor, a “"Ground Lease”"), but not by the related fee interest in such Mortgaged Property or such material portion thereof the subject real property (the “"Fee Interest”"), then, except as set forth on Schedule B-18:
(a) Such Ground Lease or a memorandum thereof has been submitted for recordingor will be duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; to the extent required under such Ground Lease, the lessor under such Ground Lease has been sent notice of the lien of the related Mortgage in accordance with the provisions of such Ground Lease; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of material changes reflected in written instruments which are a part of the related Mortgage File;
(b) The related lessee’s leasehold 's interest in the portion of the related Mortgaged Property covered by such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that it shall remain superior to any mortgage or other lien upon the related Fee Interest and Permitted EncumbrancesInterest;
(c) The Borrower’s Mortgagor's interest in such Ground Lease is assignable to, and is thereafter further assignable by, to the Purchaser and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it either has been obtained prior to the Closing Date); and in the event that it is so assigned, is further assignable by the Purchaser and its successors and assigns upon notice to, but without the need to obtain the consent of such lessor;
(d) Such Ground Lease is in full force and effect, and the Mortgage Loan Seller has not received, as of the Closing Date, any notice that an event of default has occurred thereunder and to the Mortgage Loan Seller's actual knowledge, there exists no condition that, but for the passage of time or cannot be unreasonably withheld; provided that the giving of notice, or both, would result in an event of default under the terms of such Ground Lease;
(e) Such Ground Lease requires the lessor under such Ground Lease has not been terminated and all amounts owed thereunder have been paid). If required by such Ground Lease, the lessor has received to give notice of any default by the lessee to the mortgagee under such Mortgage Loan provided such mortgagee has provided such lessor with notice of its lien of the related Mortgage in accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of the Mortgage Loan notice Lease and the holder of such Mortgage Loan is permitted a reasonable time to cure any default or breach by the lessee thereunder, including such time as is necessary to gain possession of the Mortgaged Property, by foreclosure or otherwise, if possession is necessary to effect such cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the related ground lessor provided an estoppel to the originator confirming that the related Borrower was not then in default under such Ground Lease; such Ground Lease further provides that no notice of termination given under such Ground Lease is effective against the mortgagee under such Mortgage Loan unless a copy has been delivered to such mortgagee in the mortgagee; manner described in such Ground Lease and the Mortgage Loan Seller has not received any written provided such lessor with notice of default under or termination the lien of the related Mortgage in accordance with the provisions of such Ground Lease; to the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease; and, to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(f) Such The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease;
(g) Except as set forth on Schedule B-18G, such Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, options exercisable by the mortgagee if it takes possession holder of such leasehold interestthe related Mortgage) that which extends not less than 20 twenty (20) years beyond the stated maturity end of the related amortization term of such Mortgage Loan, or 10 years if such Mortgage Loan fully or substantially amortizes by the stated maturity;
(gh) Such Ground Lease requires the lessor to enter into a new lease with a mortgagee upon termination of such Ground Lease by reason of default by the Mortgagor including termination as a result of a rejection of such Ground Lease in a bankruptcy proceeding involving the related Borrower, unless the mortgagee under such Mortgage Loan fails to cure a curable default of the lessee under such Ground Lease following notice thereof from the lessorproceeding;
(hi) Under the terms of such Ground Lease and the related Mortgage, taken together, any related casualty insurance proceeds with respect to the leasehold interest proceeds, will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender) ), or (ii) to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon. Under the terms of such Ground Lease and the related Mortgage Loan documents, taken together, any condemnation proceeds or awards in respect of a total or substantially total taking will be applied first to the payment of the outstanding principal and interest on the Mortgage Loan (except as otherwise provided by applicable law) and subject to any rights to require the improvements to be rebuilt;
(ij) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender on and such Ground Lease contains a similar mortgaged property covenant that the lessor thereunder is not permitted, in the lending area where absence of an uncured default, to disturb the Mortgaged Property is located at the time possession, interest or quiet enjoyment of any subtenant of the origination lessee, or in any manner, which would materially adversely affect the security provided by the related Mortgage;
(k) The lessor under such Ground Lease is not permitted in the absence of an uncured default to disturb the possession, interest or quiet enjoyment of the tenant in any manner, which would materially adversely affect the security provided by such Mortgage LoanGround Lease and the related Mortgage; and
(jl) Such Ground Lease provides that it may not be amended or modified or any such amendment or modification will not be effective against the mortgagee without the prior written consent of the mortgagee under such Mortgage Loan, Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns, provided that such mortgagee has provided the ground lessor with notice of its lien in accordance with the terms of such Ground Lease.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
