OR TO REALIZE THE BENEFITS
OF THE CROSS-COLLATERALIZATION PROVIDED FOR THEREUNDER; AND (E) AN OPINION OF
COUNSEL ACCEPTABLE TO THE RATING AGENCIES THAT THE SUBSTITUTION DOES NOT
CONSTITUTE A "SIGNIFICANT MODIFICATION" OF THE LOAN UNDER SECTION 1001 OF THE
CODE OR OTHERWISE CAUSE A TAX TO BE IMPOSED ON A "PROHIBITED TRANSACTION" BY ANY
REMIC TRUST HOLDING AN INTEREST IN THE LOAN.
(XVII)
BORROWER SHALL HAVE PAID (OR CAUSED TO BE PAID) ALL BASIC
CARRYING COSTS RELATING TO THE PROPERTIES AND THE REPLACEMENT PROPERTY,
INCLUDING WITHOUT LIMITATION, (I) ACCRUED BUT UNPAID INSURANCE PREMIUMS RELATING
TO THE PROPERTIES AND THE REPLACEMENT PROPERTY, (II) CURRENTLY DUE AND PAYABLE
TAXES (INCLUDING ANY IN ARREARS) RELATING TO THE
41
PROPERTIES AND THE REPLACEMENT PROPERTY AND (III) CURRENTLY DUE OTHER CHARGES
RELATING TO THE PROPERTIES AND REPLACEMENT PROPERTY.
(XVIII)
BORROWER SHALL HAVE PAID TO LENDER A SUBSTITUTION FEE EQUAL TO
ONE PERCENT (1%) OF THE SUBSTITUTED PROPERTY'S ALLOCATED PRINCIPAL AMOUNT, AND
SHALL HAVE PAID OR REIMBURSED LENDER FOR ALL 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.
BORROWER SHALL HAVE PAID ALL COSTS AND
EXPENSES OF THE RATING AGENCIES INCURRED IN CONNECTION WITH THE SUBSTITUTION.
(XIX)
LENDER SHALL HAVE RECEIVED ANNUAL OPERATING STATEMENTS AND
OCCUPANCY STATEMENTS FOR THE REPLACEMENT PROPERTY FOR THE MOST RECENTLY
COMPLETED FISCAL YEAR AND A CURRENT OPERATING STATEMENT FOR THE SUBSTITUTED
PROPERTY, EACH CERTIFIED TO LENDER AS BEING, TO THE BEST OF THE APPLICABLE
BORROWER'S KNOWLEDGE, TRUE AND CORRECT AND A CERTIFICATE FROM THE APPLICABLE
BORROWER CERTIFYING THAT THERE HAS BEEN NO ADVERSE CHANGE IN THE FINANCIAL
CONDITION OF THE REPLACEMENT PROPERTY SINCE THE DATE OF SUCH OPERATING
STATEMENTS.
(XX)
INTENTIONALLY OMITTED.
(XXI)
LENDER SHALL HAVE RECEIVED COPIES OF ALL TENANT LEASES (IF ANY)
AND ANY GROUND LEASES AFFECTING THE REPLACEMENT PROPERTY CERTIFIED BY THE
APPLICABLE BORROWER AS BEING TRUE AND CORRECT.
LENDER SHALL HAVE RECEIVED A
CURRENT RENT ROLL OF THE REPLACEMENT PROPERTY (IF THERE ARE ANY TENANT LEASES)
CERTIFIED BY SUCH BORROWER AS BEING TRUE AND CORRECT.
(XXII)
LENDER SHALL HAVE RECEIVED SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENTS FROM ANY TENANTS WITH RECORDED LEASES (UNLESS SUCH LEASES
THAT ARE, BY THEIR TERMS, SUBORDINATE TO THE MORTGAGE WITH RESPECT TO THE
REPLACEMENT PROPERTY).
(XXIII)
LENDER SHALL HAVE RECEIVED AN ENDORSEMENT TO THE TITLE
INSURANCE POLICY INSURING THE LIEN OF THE MORTGAGE ENCUMBERING THE REPLACEMENT
PROPERTY INSURING THAT THE REPLACEMENT PROPERTY CONSTITUTES A SEPARATE TAX LOT
OR, IF SUCH AN ENDORSEMENT IS NOT AVAILABLE IN THE STATE IN WHICH THE
REPLACEMENT PROPERTY IS LOCATED, OTHER EVIDENCE ACCEPTABLE TO LENDER THAT THE
SUBSTITUTE POLICY CONSTITUTES A SEPARATE TAX LOT.
(XXIV)
LENDER SHALL HAVE RECEIVED A PHYSICAL CONDITIONS REPORT WITH
RESPECT TO THE REPLACEMENT PROPERTY STATING THAT THE REPLACEMENT PROPERTY IS IN
GOOD CONDITION AND REPAIR AND FREE OF DAMAGE OR