Representation Mortgage Loan Description of Exception. The collateral for the Mortgage Loan includes a security interest in the Leasehold Space. While the Underlying Lease is a space lease, the following exceptions are noted if the Underlying Lease were treated as a “Ground Lease” for purposes of this representation: (34(b)) The Underlying Lease lessor has not expressly agreed that the Underlying Lease cannot be terminated or modified without the lender’s consent. The lender has notice and cure rights relating to any default by Mortgagor pursuant to the Underlying Lease and the Underlying Lease lessor has agreed in writing that it cannot exercise any rights and/or remedies relating to said default until the lender’s notice and cure rights have expired. (34(i)) Mortgagor may not sublet its interest in the Underlying Lease without the consent of the lessor thereunder (which consent shall not be unreasonably withheld). Note that Mortgagor is permitted to sublease its interest in the Leasehold Premises to Regal (and its successor and/or assigns). If the Regal Lease expires or is terminated for any reason (other than a default thereunder by Mortgagor solely relating to the Xxxxxxx Portion), Mortgagor shall have the option to terminate the Underlying Lease (which option may only be exercised with the lender’s consent). (34(j)) The Underlying Lease lessor is obligated to restore the Leasehold Premises in the event of a casualty or condemnation (provided the Underlying Lease is not terminated in connection with the applicable casualty). In connection with said restoration, the loss proceeds must be held by an insurance trustee satisfying certain ratings requirements. For so long as the lessor’s fee mortgagee meets said ratings requirements, it will be designated as the insurance/condemnation trustee and if it does not satisfy the ratings criteria, then it is entitled to appoint a trustee satisfying the ratings criteria. (34(k)) Given that the Underlying Lease is a space lease and is not a “Ground Lease” as defined above, the Mortgagor does not own the improvements on the Leasehold Premises and is not entitled to insurance proceeds in the event of a total loss resulting in a termination of the Underlying Lease. In the event of a condemnation where the Underlying Lease is terminated, the Underlying Lease lessor is entitled to the entire condemnation award relating to the Leasehold Premises, provided, however, Mortgagor may request a separate condemnation award to the extent that such award does not reduce the lessor’s a...
Representation Mortgage Loan Description of Exception. Lien; Valid Assignment Galleria at Tyler (Loan No. 4) Provided no event of default has occurred and is continuing, under the related Whole Loan, the Mortgage Loan documents prohibit the lender, without the prior written consent of the Mortgagor, from selling any note, participation or interest in the Whole Loan to Simon Property Group, Taubman Centers, Inc., The Macerich Company, Kimco Realty, Starwood Retail, PREIT, Washington Prime Group, Pyramid Real Estate Group, CBL & Associates Properties, Inc., Westfield Holdings Limited or Unibail-Rodamco (or any successors or assigns of or any person or entity controlled by, controlling or under common control with the foregoing); provided, however, such restrictions will not apply to (a) any transfer or sale by the lender of commercial mortgage-backed securities certificates, bonds or similar certificated interests secured in whole or in part by the Whole Loan or (b) any subsequent resale or transfer of the Whole Loan (or any interest therein) occurring after an initial sale or transfer by the lender even if such transaction results in a portion of the Whole Loan being held by a person or entity described above.
Representation Mortgage Loan Description of Exception. Underlying Lease is terminated in connection with a rejection of the Underlying Lease is bankruptcy.
Representation Mortgage Loan Description of Exception. Underlying Lease without the consent of the lessor thereunder (which consent shall not be unreasonably withheld). Note that Mortgagor is permitted to sublease its interest in the Leasehold Premises to Regal (and its successor and/or assigns). If the Regal Lease expires or is terminated for any reason (other than a default thereunder by Mortgagor solely relating to the Xxxxxxx Portion), Mortgagor shall have the option to terminate the Underlying Lease (which option may only be exercised with the lender’s consent). 34
Representation Mortgage Loan Description of Exception entity managing member of the Mortgagor, the guarantor or any affiliates thereof in connection with (1) obtaining the Mortgage Loan, (2) the failure to perform or satisfy any covenant or negative covenant contained in the Mortgage Loan documents, or (3) the Mortgaged Property; provided, further, the Mortgagor’s failure to perform or satisfy any covenant or negative covenant contained in the Mortgage Loan documents or with respect to the Mortgaged Property shall not be construed as willful misconduct if (i) sufficient cash flow is generated by the Mortgaged Property to perform or satisfy such covenant or negative covenant, deposited into a reserve fund with the lender and specifically allocated for such performance or satisfaction, and the lender fails to make such funds available to the Mortgagor after the Mortgagor has satisfied all conditions for disbursement thereof, (ii) sufficient cash flow is generated by the Mortgaged Property to perform or satisfy such covenant or negative covenant, but the lender has distributed such cash flow to the Mortgagor from the cash management account and the Mortgagor has retained such or distributed such cash flow to its direct and indirect owners (for the avoidance of doubt, the lender shall have no claim due to the Mortgagor’s distribution of such cash flow), or (iii) sufficient cash flow, at such time, is not generated by the Mortgaged Property to perform or satisfy such covenant or negative covenant; provided, however, that notwithstanding the foregoing, the Mortgagor will be liable to the extent that, from and after the date an expense is accrued, any cash flow is released to the Mortgagor and the Mortgagor does not thereafter pay such expense, but such liability is in an amount equal to the lesser of (a) the free cash flow released to the Mortgagor from and after the date such expense is incurred, and (b) the total amount of the expense, unless such cash flow was spent on the Mortgaged Property. The loss carveout for material physical waste at the Mortgaged Property is limited to intentional material physical waste of the Mortgaged Property. The obligations and liabilities of the Mortgagor and the guarantor under the environmental indemnity agreement will terminate and be of no further force and effect with respect to any unasserted claim when all of the following conditions are satisfied in full: (i) the Mortgage Loan has been paid in full and the indemnitee has not commenced foreclosure proceedings or otherwise t...
Representation Mortgage Loan Description of Exception. (unless there is a conflict with the condominium documents, in which case the condominium documents will control) and completes the restoration of any portions of the Mortgaged Property that the condominium or the board of directors is not required to restore, and (c) Borrower complies with any requirements under the condominium documents in order to enable Lender to obtain all rights to which mortgagees of commercial units in the condominium are entitled under the condominium documents with respect to insurance proceeds.
Representation Mortgage Loan Description of Exception. The environmental assessment for Dollar General Portfolio II – Iron Mountain identified a REC at the Mortgaged Property due to the former operations of a furniture manufacturing plant at a property north adjacent to the Mortgaged Property and of a wood-processing plant at a property west adjacent to the Mortgaged Property. The former furniture manufacturing plant operations led to contamination of the soil and groundwater at the Mortgaged Property and contaminant remediation. The wood-processing plant led to contamination of the soil and groundwater at the Mortgaged Property and, per the ESA, the groundwater migration has the potential to introduce additional contaminations at the Mortgaged Property. German American Capital Corporation (“Seller”) hereby certifies as follows:
Representation Mortgage Loan Description of Exception. Under the Mortgage Loan documents if there is: (1) any termination or attempted termination, of the estate of Mortgagor in and to the Mortgaged Property as a result of any exercise or attempted exercise of the right of reverter prior to the date lender or its successor or assign acquires title to the Mortgaged Property by reason of foreclosure or deed-in-lieu or (2) any failure of Mortgagor to deposit (or cause to be deposited) the proceeds of any exercise of the right of reverter, then Mortgagor and the non-recourse carveout Guarantor shall be personally liable to lender for any loss or damage that arises from the foregoing. “Parcel B Declaration” means that certain Declaration of Covenants and Restrictions Upon Parcel B in Fairlane North dated September 13, 1999 by Grantor and recorded in the Xxxxx County Register of Deeds on September 27, 1999 in Liber 30375, Page 99, as amended by that certain First Amendment to Declaration of Covenants and Restrictions Upon the Use of Parcel B in Fairlane North dated February 20, 2012 by Grantor and recorded on March 2, 2012 in the Xxxxx County Register of Deeds in Liber 49641, Page 1482. The Parcel B Declaration generally contains restrictions on a 17.308 acre property, of which the Mortgaged Property constitutes 3.49 acres, related to use (which do not prevent use as a hotel), maximum building heights, minimum building setbacks, building materials, building design, parking areas, landscaping, signs, exterior lighting, utilities, construction inconvenience, fencing and property maintenance. Any construction is generally subject to Grantor’s review. Grantor reserves the right to amend the restrictions with respect to their application to any portion of Parcel B that is not sold and conveyed and/or leased to a developer. This right of reservation lasts for the lesser of the period during which Grantor retains fee title to more than 30% of the total valuation of lands in Parcel B, or September 30, 2100. “Declaration” means that certain Declaration of Reciprocal Easements and Operation Agreement dated October 15, 1993 by Grantor and recorded on November 3, 1993 in the Xxxxx County Register of Deeds in Liber 26935, Page 048. This Declaration relates to a comprehensive 285 acre parcel, of which the Mortgaged Property is a part. The comprehensive parcel is subject to exclusive use restrictions in favor of Kmart, PACE, Building Square, Borders, Sports Authority and Office Max.
Representation Mortgage Loan Description of Exception. Access; Utilities; Separate Tax Lots GFH Xxxxxxx Industrial Portfolio (Loan No. 10) With respect to the Mortgaged Property known as UMIP N 107th Street, a vacant portion of the Mortgaged Property (the “Side Lot”) was purchased in January 2016 from a third party adjacent property owner. Documentation for a lot line adjustment to separate the tax parcels has been filed with the local authority and will take effect in December 2016, when 2017 tax bills are released. To mitigate risks associated with the Side Lot not being a separate tax lot from the third party land at closing, the lender has taken a tax escrow in an amount equal to two months of taxes, covering taxes for the entire tax parcel, including the portion still owned by the third-party seller. The borrower is required to replenish the tax escrow if it is ever used. The tax escrow will be released to the borrower once the lot line adjustment is effectuated and the borrower delivers an endorsement to the lender’s title policy that the Side Lot is a separate tax lot. Additionally, the Loan Documents provide recourse from the borrower and guarantors for any losses the lender may suffer due to the fact that part of the Mortgaged Property is not on a separate tax lot.
Representation Mortgage Loan Description of Exception. Recourse Obligations Empire Mall (Loan No. 1) The guarantor’s liability is limited to $38,000,000.00 plus all reasonable out-of-pocket costs and expenses incurred in the enforcement of the guaranty or preservation of the lender’s rights under the guaranty. The borrower is permitted to replace the existing guarantor for liabilities under the guaranty accruing after the date of such replacement with an entity controlled by any key principal of the guarantor. With respect to subsection (iii), the Loan Documents do not provide recourse for intentional material physical waste.
