PERCENT (125%) OF SUCH ESTIMATED COST, WHICH DEPOSIT SHALL
CONSTITUTE ADDITIONAL SECURITY FOR THE MORTGAGE LOAN OR THE MEZZANINE A LOAN, AS
APPLICABLE, AND SHALL BE RELEASED TO MORTGAGE BORROWER OR MEZZANINE A BORROWER,
AS APPLICABLE, UPON THE DELIVERY TO MORTGAGE LENDER OR MEZZANINE A LENDER, AS
APPLICABLE, OF (1) AN UPDATE TO SUCH REPORT INDICATING THAT THERE IS NO LONGER
ANY HAZARDOUS SUBSTANCE ON THE SUBSTITUTE PROPERTY THAT HAS NOT BEEN REMEDIATED
OR CONTAINED IN ACCORDANCE WITH APPLICABLE LEGAL REQUIREMENTS IN ALL MATERIAL
RESPECTS OR ANY MATERIAL DANGER OF CONTAMINATION FROM ANY OFF SITE HAZARDOUS
SUBSTANCE IN CONTRAVENTION OF ANY APPLICABLE LEGAL REQUIREMENT, AND (2) A
CERTIFICATE FROM MORTGAGE BORROWER OR MEZZANINE A
59
BORROWER, AS APPLICABLE, STATING THAT ALL SUCH REMEDIATION WORK HAS BEEN PAID IN
FULL OR WILL BE PAID FOR OUT OF THE AMOUNTS RESERVED WITH MORTGAGE LENDER OR
MEZZANINE A LENDER, AS APPLICABLE. IN THE EVENT THAT NEITHER MORTGAGE LENDER NOR
MEZZANINE A LENDER ELECTS TO REQUIRE SUCH DEPOSIT, BORROWER SHALL DELIVER SUCH
DEPOSIT TO LENDER.
(M)
BORROWER SHALL DELIVER OR CAUSE TO BE
DELIVERED TO LENDER (A) UPDATES OR, IF THE SUBSTITUTE PROPERTY IS TO BE OWNED BY
AN AFFILIATE OF BORROWER, ORIGINALS, IN EITHER CASE CERTIFIED BY BORROWER OR
SUCH AFFILIATE, AS APPLICABLE, OF ALL ORGANIZATIONAL DOCUMENTATION RELATED TO
BORROWER OR SUCH AFFILIATE, AS APPLICABLE, 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 OR SUCH AFFILIATE, AS APPLICABLE, AUTHORIZING THE SUBSTITUTION AND ANY
ACTIONS TAKEN IN CONNECTION WITH SUCH SUBSTITUTION.
(N)
LENDER SHALL HAVE RECEIVED THE FOLLOWING
OPINIONS OF BORROWER'S COUNSEL: (A) AN OPINION OR OPINIONS OF COUNSEL STATING
THAT THE LOAN DOCUMENTS DELIVERED WITH RESPECT TO THE SUBSTITUTE PROPERTY
PURSUANT TO CLAUSE (H) ABOVE ARE VALID AND ENFORCEABLE IN ACCORDANCE WITH THEIR
TERMS, SUBJECT TO THE LAWS APPLICABLE TO CREDITORS' RIGHTS AND EQUITABLE
PRINCIPLES; (B) AN OPINION OF COUNSEL ACCEPTABLE TO THE RATING AGENCIES, IF THE
LOAN IS PART OF A SECURITIZATION, OR REASONABLY ACCEPTABLE TO A PRUDENT
INSTITUTIONAL MORTGAGE LOAN LENDER, IF THE LOAN IS NOT PART OF A SECURITIZATION,
STATING THAT THE LOAN DOCUMENTS DELIVERED WITH RESPECT TO THE SUBSTITUTE
PROPERTY PURSUANT TO THIS SECTION ARE 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 BY WHICH IT OR ITS PROPERTIES ARE BOUND; AND (C) AN UPDATE OF THE
INSOLVENCY OPINION INDICATING THAT THE SUBSTITUTION DOES NOT AFFECT THE OPINIONS
SET FORTH THEREIN.
(O)
BORROWER SHALL HAVE CAUSED MORTGAGE BORROWER
TO (I) HAVE PAID, (II) HAVE ESCROWED WITH MORTGAGE LENDER OR (III) BE CONTESTING
IN ACCORDANCE WITH THE TERMS