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Keep Mortgage Loan Promises ' or Else

By Jo-Ann Marzullo and Brian Atherton

The terms of, and promises made in, a mortgage loan for a shopping center control the operation, ownership of and disposition of that shopping center so long as that loan remains outstanding. Those handling the leasing, operation, transfer of minority interests and sale of the shopping center need to be aware of what actions are permitted without need of consent, what requires prior approval of the lender and what cannot be done at all or only with a protracted negotiation and/or payment of fees.

The promises made and terms of the mortgage loan include: 1) what is pledged to the lender; 2) insurance to be maintained; 3) what happens to insurance proceeds if something happens at the shopping center; 4) payment of real estate taxes, assessments and ground rent; 5) what new leases, lease amendments and lease terminations the borrower may sign without prior approval of the lender; maintenance of the shopping center; 6) permitted alterations of the buildings in the shopping center; 7) permitted transfers of the real estate itself or in the entity that owns the shopping center; and 8) whether the loan can be prepaid early voluntarily. These terms are most likely to be found in a mortgage, but could also be found in an assignment of leases and rents, a promissory note, or a loan agreement, so read all of the loan documents even though this article only refers to the mortgage.

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