Substitution of Properties. Subject to the terms and conditions set forth in this Section 2.6, Borrower may obtain a release of the Lien of the Security Instrument (and the related Loan Documents) encumbering an Individual Property (a Substituted Property) by substituting therefor another property of like kind and quality acquired by Borrower (individually, a Substitute Property and collectively, the Substitute Properties), provided that the following conditions precedent are satisfied: (a) The Maturity Date shall have not occurred. (b) Lender shall have received at least thirty (30) days prior written notice requesting the substitution and identifying the Substitute Property and Substituted Property. (c) Lender shall have received a copy of a deed conveying all of Borrower’s right, title and interest in and to the Substituted Property to an entity other than Borrower pursuant to an arms length transaction and a letter from Borrower countersigned by a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Substituted Property is located. (d) Lender shall have received a fee in the amount of $10,000 with respect to each Substituted Property. (e) Lender shall have received an appraisal of the Substitute Property and Substituted Property, dated no more than one hundred eighty (180) days prior to the substitution date, by an appraiser acceptable to the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, which demonstrates that the appraised value of the Substitute Property shall be equal to or greater than the appraised value of the Substituted Property. (f) All or substantially all of the Substitute Property shall be subject to a Lease to a tenant which has a senior unsecured long term credit rating (or whose obligations under the Lease are guaranteed by a guarantor which has a senior unsecured long term credit rating) at least equal to, for each Rating Agency, the lower of (i) the credit rating of Bank of America, N.A. at the time of the substitution by such Rating Agency and (ii) “A+” in the case of S&P, “AA-” in the case of Fitch and “Aa2” in the case of ▇▇▇▇▇’▇, which Lease shall (A) provide that every monetary and non-monetary obligation associated with managing, owning, developing and operating such Substitute Property is an obligation of the tenant thereunder (i.e., a “triple net” Lease), (B) have a term substantially similar or longer than that of the Lease then encumbering the applicable Substituted Property, (C) provide offset and termination rights in favor of the tenant thereunder substantially similar (or more favorable to Borrower, as landlord thereunder) to those in favor of Bank of America, N.A. provided for by the BofA Lease then encumbering the applicable Substituted Property, and (D) provide for annual cash flow equal to or in excess of the Underwritten Net Cash Flow on an annual basis of the Substituted Property. In the event the tenant’s obligations under the Lease are guaranteed by such guarantor, the Lender shall have approved the form of guarantee. Lender shall have received copies of all Leases affecting the Substitute Property certified by Borrower as being true and correct. (g) After giving effect to the substitution, the DSCR for the Loan for all of the Properties (excluding the Substituted Property and including the Substitute Property) is not less than the greater of (1) the DSCR for the Loan for all of the Properties as of the Closing Date and (2) the DSCR for the Loan for all of the Properties as of the date immediately preceding the substitution. (h) After giving effect to the substitution, the aggregate Allocated Loan Amount of the Substituted Properties shall not exceed (A) during any twelve (12) consecutive month period, 5.00% of the initial Principal Amount of the Loan or (B) during the term of the Loan, 30.00% of the initial Principal Amount of the Loan; provided, that for purposes of the aforementioned calculation in clause (A) of the maximum 5.00% of the initial Principal Amount of the Loan, as calculated by reference to the Allocated Loan Amount of the Substituted Properties, that may be substituted during any twelve consecutive month period, such calculation shall exclude any substitution of any Individual Property for which a reserve amount has been allocated on Schedule IX hereto or the Individual Property referred to on Schedule II attached hereto as “Las Vegas Operations Center”, which substitution occurs in connection with, as a result of and simultaneous with the exercise of the right to repurchase such Individual Property granted to Bank of America, N.A. in the documentation pursuant to which Borrower acquired the Property. (i) The quotient of Underwritten Net Cash Flow (for the most recent twelve (12) month period immediately preceding the substitution for which the Borrower has delivered financial statements to the Lender pursuant to this Agreement (or in the event the Borrower has not yet delivered financial statements for a twelve (12) month period, such shorter period for which Borrower has delivered financial statements to the Lender pursuant to this Agreement annualized)) divided by an amount equal to Allocated Loan Amount multiplied by the DSCR Constant shall be calculated separately with respect to each of the Substituted Property and the Substitute Property (replacing for this purpose all references to Property in the definitions of Underwritten Net Cash Flow, Operating Income and Operating Expenses with Substituted Property and Substitute Property, as applicable) and the result of such calculation for the Substitute Property shall be equal to or greater than the result of such calculation for the Substituted Property. (j) Borrower shall have obtained a Rating Agency Confirmation in writing. If any subordinate or mezzanine financing has been obtained with respect to the Property (including, without limitation, under Article XIV hereof), the Borrower shall have obtained the consent of the lender under such subordinate or mezzanine financing in writing to such substitution. (k) No Event of Default shall have occurred and be continuing and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each Loan Document on Borrower’s part to be observed or performed. Lender shall have received a certificate from Borrower confirming the foregoing, stating that the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of the substitution with respect to Borrower, the Properties and the Substitute Property. (l) Borrower (A) shall have executed, acknowledged and delivered to Lender (I) a Security Instrument and shall have approved UCC-1 Financing Statements with respect to the Substitute Property, and shall have executed, acknowledged and delivered to Lender a letter from Borrower countersigned by a title insurance company acknowledging receipt of such Security Instrument and UCC-1 Financing Statements and agreeing to record or file, as applicable, such Security Instrument and one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and to file one of the UCC-1 Financing Statements in the office of the Secretary of State (or other central filing office) of the state in which the Substitute Property is located, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, (B) shall have executed, acknowledged and delivered to Lender an Environmental Indemnity with respect to the Substitute Property and (C) shall have caused the Guarantor to acknowledge and confirm its respective obligations under the Loan Documents. The Security Instrument, UCC-1 Financing Statements and Environmental Indemnity shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Substituted Property subject to modifications reflecting only the Substitute Property as the Individual Property that is the subject of such documents and such modifications reflecting the laws of the state in which the Substitute Property is located as shall be recommended for similar transactions by the counsel admitted to practice in such state and delivering the opinion as to the enforceability of such documents required pursuant to clause (r) below. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Notes, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred twenty-five percent (125%) of the fair market value of the Substitute Property. The amount of the Loan allocated to the Substitute Property (such amount being hereinafter referred to as the Substitute Release Amount) shall equal the Allocated Loan Amount of the related Substituted Property. (m) Lender shall have received (A) to the extent available any “tie-in” or similar endorsement to each title insurance policy insuring the Lien of an existing Security Instrument as of the date of the substitution with respect to the title insurance policy insuring the Lien of the Security Instrument with respect to the Substitute Property and (B) a title insurance policy (or a marked, signed and redated commitment to issue such title insurance policy) insuring the Lien of the Security Instrument encumbering the Substitute Property, issued by the title company that issued the title insurance policies insuring the Lien of the existing Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the title insurance policy insuring the Lien of the Security Instrument encumbering the Substituted Property. The title insurance policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Substitute Release Amount if the “tie-in” or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred twenty-five percent (125%) of the Substitute Release Amount, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such endorsements and affirmative coverages as are then available and are contained in the title insurance policies insuring the Liens of the existing Security Instruments, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts or other evidence showing that all premiums in respect of such endorsements and title insurance policies have been paid. (n) Lender shall have received a current Survey for each Substitute Property, certified to the Title Company and Lender and their successors and assigns, in the same form and having the same content as the certification of the Survey of the Substituted Property prepared by a professional land surveyor licensed in the state in which the Substitute Property is located and, if the Loan is the subject of a Securitization, acceptable to the Rating Agencies in accordance with the 1992 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys. Such survey shall reflect the same legal description contained in the Title Policy relating to such Substitute Property and shall include, among other things, a metes and bounds description of the real property comprising part of such Substitute Property (unless such real property has been satisfactorily designated by lot number on a recorded plat). The surveyor’s seal shall be affixed to each Survey and each Survey shall certify that the surveyed property is not located in a “one-hundred-year flood hazard area.” (o) Lender shall have received valid certificates of insurance indicating that the requirements for the policies of insurance required for an Individual Property hereunder have been satisfied with respect to the Substitute Property and evidence of the payment of all premiums payable for the existing policy period. (p) Lender shall have received a Phase I environmental report acceptable to Lender and, if recommended under the Phase I environmental report, a Phase II environmental report acceptable to Lender, which conclude that the Substitute Property does not contain any Hazardous Materials and is not subject to any risk of contamination from any off-site Hazardous Materials. If any such report discloses the presence of any Hazardous Materials or the risk of contamination from any off-site Hazardous Materials, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such report indicating that there is no longer any Hazardous Materials on the Substitute Property or any danger of contamination from any off-site Hazardous Materials that has not been fully remediated and (B) paid receipts indicating that the costs of all such remediation work have been paid. (q) Borrower shall deliver or cause to be delivered to Lender (A) updates certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business delivered to Lender on the Closing Date; (B) good standing certificates, certificates of qualification to do business in the jurisdiction in which the Substitute Property is located (if required in such jurisdiction); and (C) resolutions of Borrower authorizing the substitution and any actions taken in connection with such substitution. (r) Lender shall have received the following opinions of Borrower’s counsel: (A) an Opinion or Opinions of Counsel admitted to practice under the laws of the State in which the Substitute Property is located in substantially the same form and substance as the Opinion of Counsel originally delivered with respect to the Substituted Property on the Closing Date, stating, without limitation, that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (l) above are valid and enforceable in accordance with their terms, subject to the laws applicable to creditors’ rights and equitable principles, that Borrower is qualified to do business and in good standing under the laws of the jurisdiction where the Substitute Property is located or that Borrower is not required by applicable law to qualify to do business in such jurisdiction; (B) an Opinion of Counsel acceptable to the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (l) above were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Loan Documents and the performance by Borrower of its obligations thereunder will not cause a breach of, or a default under, any agreement, document or instrument to which Borrower is a party or to which it or its properties are bound; and (C) if the Loan is the subject of a Securitization, an Opinion of Counsel reasonably acceptable to the Rating Agencies that the substitution does not constitute a “significant modification” of the Loan under Section 1001 of the Code or
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Sources: Loan and Security Agreement (American Financial Realty Trust)
Substitution of Properties. Subject to the terms and conditions set forth in this Section 2.62.8, Borrower may obtain a release of the Lien of the Security Instrument a Mortgage (and the related Loan Documents) encumbering an Individual Property (a “Substituted Individual Property”) by substituting therefor therefore another full service hotel or resort property of like kind and quality acquired by Borrower or an Affiliate of Borrower (individuallyprovided, a however, if the Substitute Property shall be owned by an Affiliate of Borrower such Affiliate (i) shall become a party to the Loan Documents and collectively, shall be bound by the terms and provisions thereof as if it had executed the Loan Documents and shall have the rights and obligations of Borrower thereunder) (a “Substitute PropertiesIndividual Property”), provided that the following conditions precedent are satisfied:
(a) The Maturity Date shall have not occurred. During the term of the Loan, the Borrower’s right to substitute Properties, provided that the sum of the original Release Amount for all Substituted Individual Properties and all Properties released under Section 2.5.1 hereof in no event exceeds thirty percent (30%) of the original principal balance of the Loan.
(b) Lender shall have received at least thirty (30) days days’ prior written notice requesting the substitution and identifying the Substitute Individual Property and Substituted Individual Property. If a Substitute Individual Property shall consist, in whole or in part, of a leasehold estate created pursuant to a ground lease such ground lease shall meet all applicable Rating Agency requirements for a financeable ground lease or shall be otherwise acceptable to the Rating Agencies for purposes of subsection (g) below, if applicable, or to Lender for purposes of subsection (g) below, if applicable.
(c) If the applicable Borrower or Baltimore Owner continues to own an Individual Property not released, Lender shall have received a copy of a deed conveying all of the applicable Individual Borrower’s or Baltimore Owner’s right, title and interest in and to the Substituted Individual Property to an entity other than such Individual Borrower or Baltimore Owner pursuant to an arms length transaction and a letter from the applicable Individual Borrower or Baltimore Owner countersigned by a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county or other appropriate land registry in which the Substituted Individual Property is located.
(d) Lender shall have received a fee in the amount of $10,000 with respect to each Substituted Property.
(e) Lender shall have received an appraisal of each of the Substitute Individual Property and Substituted Individual Property, dated no more than one hundred eighty ninety (18090) days prior to the substitution date, by an appraiser acceptable to the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, which demonstrates that the appraised Agencies.
(e) The fair market value of the Substitute Individual Property shall be equal to or greater is not less than one hundred percent (100%) of the appraised fair market value of the Substituted PropertyIndividual Property as of the date immediately preceding the substitution, which determination shall be made by Lender based on the appraisals delivered pursuant to subsection (d) above.
(f) All or substantially all of the Substitute Property shall be subject to a Lease to a tenant which has a senior unsecured long term credit rating (or whose obligations under the Lease are guaranteed by a guarantor which has a senior unsecured long term credit rating) at least equal to, for each Rating Agency, the lower of (i) the credit rating of Bank of America, N.A. at the time of the substitution by such Rating Agency and (ii) “A+” in the case of S&P, “AA-” in the case of Fitch and “Aa2” in the case of ▇▇▇▇▇’▇, which Lease shall (A) provide that every monetary and non-monetary obligation associated with managing, owning, developing and operating such Substitute Property is an obligation of the tenant thereunder (i.e., a “triple net” Lease), (B) have a term substantially similar or longer than that of the Lease then encumbering the applicable Substituted Property, (C) provide offset and termination rights in favor of the tenant thereunder substantially similar (or more favorable to Borrower, as landlord thereunder) to those in favor of Bank of America, N.A. provided for by the BofA Lease then encumbering the applicable Substituted Property, and (D) provide for annual cash flow equal to or in excess of the Underwritten Net Cash Flow on an annual basis of the Substituted Property. In the event the tenant’s obligations under the Lease are guaranteed by such guarantor, the Lender shall have approved the form of guarantee. Lender shall have received copies of all Leases affecting the Substitute Property certified by Borrower as being true and correct.
(g) After giving effect to the substitution, the DSCR Debt Service Coverage Ratio for the Loan for all of the Properties (excluding the Substituted Individual Property and including the Substitute Individual Property) is not less than the greater of (1) the DSCR for the Loan for all of the Properties as of the Closing Date and (2) the DSCR Debt Service Coverage Ratio for the Loan for all of the Properties as of the date immediately preceding the substitution.
(hg) After giving effect If the Loan is part of a Securitization, Lender shall have received confirmation in writing from the Rating Agencies to the substitutioneffect that such substitution will not result in a withdrawal, the aggregate Allocated Loan Amount qualification or downgrade of the Substituted Properties shall not exceed (A) during respective ratings in effect immediately prior to such substitution for the Securities, or any twelve (12) consecutive month periodclass thereof, 5.00% of issued in connection with the initial Principal Amount of Securitization that are then outstanding. If the Loan or (B) during the term is not part of the Loana Securitization, 30.00% of the initial Principal Amount of the Loan; provided, that for purposes of the aforementioned calculation in clause (A) of the maximum 5.00% of the initial Principal Amount of the Loan, as calculated by reference to the Allocated Loan Amount of the Substituted Properties, that may be substituted during any twelve consecutive month period, such calculation shall exclude any substitution of any Individual Property for which a reserve amount has been allocated on Schedule IX hereto or the Individual Property referred to on Schedule II attached hereto as “Las Vegas Operations Center”, which substitution occurs in connection with, as a result of and simultaneous with the exercise of the right to repurchase such Individual Property granted to Bank of America, N.A. in the documentation pursuant to which Borrower acquired the Property.
(i) The quotient of Underwritten Net Cash Flow (for the most recent twelve (12) month period immediately preceding the substitution for which the Borrower has delivered financial statements to the Lender pursuant to this Agreement (or in the event the Borrower has not yet delivered financial statements for a twelve (12) month period, such shorter period for which Borrower has delivered financial statements to the Lender pursuant to this Agreement annualized)) divided by an amount equal to Allocated Loan Amount multiplied by the DSCR Constant shall be calculated separately with respect to each of the Substituted Property and the Substitute Property (replacing for this purpose all references to Property in the definitions of Underwritten Net Cash Flow, Operating Income and Operating Expenses with Substituted Property and Substitute Property, as applicable) and the result of such calculation for the Substitute Property shall be equal to or greater than the result of such calculation for the Substituted Property.
(j) Borrower shall have obtained a Rating Agency Confirmation in writing. If any subordinate or mezzanine financing has been obtained with respect to the Property (including, without limitation, under Article XIV hereof), the Borrower shall have obtained the consent of the lender under such subordinate or mezzanine financing consented in writing to such substitution, which consent shall not be unreasonably withheld, conditioned or delayed.
(kh) No Event of Default shall have occurred and be continuing and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each Loan Document on Borrower’s part to be observed or performedcontinuing. Lender shall have received a certificate from Borrower confirming the foregoingan Officer’s Certificate certifying that, stating that to such officer’s knowledge, the representations and warranties of Borrower and Baltimore Owner contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of the substitution with respect to Borrower, the Properties and the Substitute PropertyIndividual Property and containing any other reasonable representations and warranties with respect to the Substitute Individual Property as the Rating Agencies or Lender, as applicable, may require, unless such certificate would be inaccurate, such certificate to be in form and substance reasonably satisfactory to the Rating Agencies or Lender, as applicable.
(li) The applicable Individual Borrower or Baltimore Owner shall (Ai) shall have executed, acknowledged and delivered to Lender (IA) a Security Instrument Mortgage, an Assignment of Leases and shall have approved Rents and two (2) UCC-1 Financing Statements with respect to the Substitute Individual Property, and shall have executed, acknowledged and delivered to Lender together with a letter from such Individual Borrower countersigned by a title insurance company acknowledging receipt of such Security Instrument Mortgage, Assignment of Leases and Rents and UCC-1 Financing Statements and agreeing to record or present for recording or file, as necessary and applicable, such Security Instrument Mortgage, Assignment of Leases and Rents and one of the UCC-1 Financing Statements in the real estate records for the county or other applicable registry in which the Substitute Individual Property is located and to file one of the UCC-1 Financing Statements in the office of the Secretary of State (or other central filing office) of the state in which the Substitute Property is locatedof such Individual Borrower’s organization, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Individual Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, Documents and (B) shall have executed, acknowledged and delivered to Lender an Environmental Indemnity with respect to the Substitute Individual Property and (Cii) shall have caused the Guarantor to acknowledge and confirm its respective obligations under the Loan DocumentsDocuments to which it is a party. The Security InstrumentMortgage, the Assignment of Leases and Rents, the UCC-1 Financing Statements and the Environmental Indemnity shall be the same in form and substance as the counterparts of such documents executed and and/or delivered with respect to the related Substituted Property Individual Property, subject to modifications reflecting only the Substitute Individual Property as the Individual Property that is the subject of such documents and such modifications reflecting the laws of the state State in which the Substitute Individual Property is located as shall be recommended for similar transactions by the counsel admitted to practice in such state State and delivering the opinion as to the enforceability of such documents required pursuant to clause subsection (ro) below. The Security Instrument Mortgage encumbering the Substitute Individual Property shall secure all amounts evidenced by the NotesNote, provided that in the event that the jurisdiction in which the Substitute Individual Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument Mortgage shall be equal to one hundred twenty-five twenty percent (125120%) of the fair market value of the Substitute Individual Property. The amount of the Loan allocated to the Substitute Individual Property (such amount being hereinafter referred to as the “Substitute Release Amount”) shall equal the Allocated Loan Release Amount of the related Substituted Individual Property.
(mj) Lender shall have received (Ai) to the extent available any “tie-in” or similar endorsement to each title insurance policy Title Insurance Policy insuring the Lien of an existing Security Instrument Mortgage as of the date of the substitution with respect to the title insurance policy Title Insurance Policy insuring the Lien of the Security Instrument Mortgage with respect to the Substitute Individual Property and (Bii) a title insurance policy Title Insurance Policy (or a marked, signed and redated commitment to issue such title insurance policyTitle Insurance Policy) insuring the Lien of the Security Instrument Mortgage encumbering the Substitute Individual Property, issued by the title insurance company that issued the title insurance policies Title Insurance Policies insuring the Lien of the existing Security Instrument Mortgages and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the title insurance policy Title Insurance Policy insuring the Lien of the Security Instrument Mortgage encumbering the Substituted Individual Property. The title insurance policy Title Insurance Policy issued with respect to the Substitute Individual Property shall (1A) provide coverage in the amount of the Substitute Release Amount if the “tie-in” or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred twenty-five twenty percent (125120%) of the Substitute Release Amount, (2B) insure Lender that the relevant Security Instrument Mortgage creates a valid first lien on the Substitute Individual Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3C) contain such endorsements and affirmative coverages as are then available and are contained in the title insurance policies Title Insurance Policies insuring the Liens of the existing Security InstrumentsMortgages, and (4D) name Lender as the insured. Lender also shall have received copies of paid receipts or other evidence showing that all premiums in respect of such endorsements and title insurance policies Title Insurance Policies have been paid.
(nk) Lender shall have received a current Survey survey for each Substitute Individual Property, certified to the Title Company title insurance company and Lender and their successors and assigns, in substantially the same form and having the same content as the certification of the Survey survey of the Substituted Individual Property prepared by a professional land surveyor licensed in the state State in which the Substitute Individual Property is located and, if the Loan is the subject of a Securitization, and acceptable to the Rating Agencies Agencies, in accordance with the 1992 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys. Such survey shall reflect the same legal description contained in the Title Insurance Policy relating to such Substitute Individual Property and shall include, among other things, a metes and bounds description of the real property comprising part of such Substitute Individual Property (unless such real property has been satisfactorily designated by lot number on a recorded plat). The surveyor’s seal shall be affixed to each Survey and each Survey such survey and, if customary, such survey shall certify that whether any portion of the surveyed property or the improvements thereon is not located in a “one-hundred-year flood hazard area.”
(ol) Lender shall have received valid certificates of insurance indicating that the requirements for the policies of insurance required for an Individual Property hereunder have been satisfied with respect to the Substitute Individual Property and evidence of the payment of all premiums payable for the existing policy period.
(pm) Lender shall have received a Phase I environmental report dated not more than 90 days prior to the substitution and otherwise reasonably acceptable to Lender a prudent lender and, if recommended under the Phase I environmental report, a Phase II environmental report acceptable to Lendera prudent lender, which conclude that the Substitute Individual Property does not contain any Hazardous Materials unacceptable levels of hazardous materials and is not subject to any significant risk of contamination from any off-site Hazardous Materialshazardous materials. If any such report discloses the presence of any Hazardous Materials such hazardous materials or the risk of such contamination from any off-site Hazardous Materialshazardous materials, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender (which deposit may be made in the form of a Letter of Credit) an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be disbursed to pay for the costs of remediation in the manner provided herein for the disbursement of the Required Repair Fund. Any remaining balance of such deposit (or Letter of Credit) shall be released to Borrower upon the delivery to Lender of (Ai) an update to such report indicating that there is no longer any Hazardous Materials such hazardous materials on the Substitute Individual Property or any danger significant risk of contamination from any such off-site Hazardous Materials hazardous materials that has not been fully acceptably remediated and (Bii) paid receipts or other reasonable evidence indicating that the costs of all such remediation work have been paid.
(qn) Borrower shall deliver deliver, or cause to be delivered delivered, to Lender (Ai) updates certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business delivered to Lender on the Closing Date; (Bii) good standing certificates, certificates and/or certificates of qualification to do business in the jurisdiction in which the Substitute Individual Property is located (if required in such jurisdiction); and (Ciii) resolutions of Borrower authorizing the substitution and any actions taken in connection with such substitution.
(ro) Lender shall have received the following opinions of Borrower’s counselcounsel subject to customary qualifications: (Ai) an Opinion opinion or Opinions opinions of Counsel counsel admitted to practice under the laws of the State in which the Substitute Individual Property is located in substantially the same form and substance as the Opinion of Counsel originally delivered with respect to the Substituted Property on the Closing Date, stating, without limitation, stating that the Loan Documents delivered with respect to the Substitute Individual Property pursuant to clause subsection (li) above are valid and enforceable in accordance with their terms, subject to the laws applicable to creditors’ rights and equitable principles, and that Borrower is qualified to do business and in good standing under the laws of the jurisdiction where the Substitute Individual Property is located or that Borrower is not required by applicable law to qualify to do business in such jurisdiction; (Bii) an Opinion opinion of Counsel counsel reasonably acceptable to the Rating Agencies Agencies, if the Loan is part of a Securitization, or the Lender Lender, if the Loan is not part of a Securitization, stating that the Loan Documents delivered with respect to the Substitute Individual Property pursuant to clause subsection (li) above were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Loan Documents and the performance by Borrower of its obligations thereunder will not cause a breach of, or a default under, any material agreement, document or instrument to which Borrower is a party or to which it or its properties are bound; (iii) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein; and (Civ) if the Loan is the subject part of a Securitization, an Opinion opinion of Counsel reasonably counsel acceptable to the Rating Agencies that the substitution does not constitute a “significant modification” of the Loan under Section 1001 of the Code oror otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC Trust.
(p) Borrower shall have paid, or be contesting in accordance with terms of the Loan Documents or escrowed with Lender, all Basic Carrying Costs relating to the Substitute Individual Property, including without limitation, (i) accrued and currently due and payable but unpaid insurance premiums relating to the Substitute Individual Property, and (ii) currently due and payable Taxes (including any in arrears) relating to the Substitute Individual Property and (iii) currently due and payable maintenance charges and other impositions relating to the Substitute Individual Property.
(q) Borrower shall have paid or reimbursed Lender for all reasonable costs and expenses incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the substitution and Borrower shall have paid all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the substitution, however, Borrower shall not be required to pay any fee
Appears in 1 contract