Common use of Successor Borrower Clause in Contracts

Successor Borrower. Upon the defeasance of the Loan under this Section 2.4.2, Borrower may, or at the option of Lender shall, assign all of its Obligations, together with the pledged Defeasance Collateral, to a successor entity designated by Borrower and approved by Lender (in each case, the “Successor Borrower”). Such successor entity shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it shall assume Borrower’s Obligations and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (i) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and such successor entity in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (ii) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs and expenses incurred by Successor Borrower, including attorneys’ fees and expenses, incurred in connection therewith. In connection with a transfer of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower shall be relieved of its Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder.

Successor Borrower. Upon the defeasance release of the Loan under this Properties or an individual Property, as the case may be, in accordance with Section 2.4.22.5.2, Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) may, or at the option of Lender shall, assign all of its Obligationstheir (or its) Obligations under the Note or the Defeased Note, as applicable, together with the pledged Defeasance Collateral, to a successor entity designated by Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) and approved by Lender (in each case, the “Successor Borrower”)its sole discretion. Such successor entity shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it shall assume Borrower’s the Obligations of Borrowers under the Note (or, if applicable, the Undefeased Note and the Defeased Note) and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower Borrowers shall (ia) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower Borrowers and such successor entity in accordance with its terms and that the Note (or, if applicable, the Undefeased Note and the Defeased Note), the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (iib) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs and expenses incurred by Successor Borrower, including attorneys’ fees and expenses, incurred in connection therewith. In connection with a transfer of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) shall be relieved of its their (or its) Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder, and the term “Borrowers” or the term “Borrower” shall be deemed revised accordingly.

Successor Borrower. Upon the defeasance of the Loan under this Section 2.4.2, Borrower may, or at the option of Lender shall, assign all of its Obligations, together with the pledged Defeasance Collateral, to a successor entity designated by Borrower and approved by Lender (in each case, the “Successor Borrower”). Such successor entity shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it shall assume Borrower’s Obligations and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (i) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and such successor entity in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (ii) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs and expenses incurred by Successor Borrower, including attorneys’ fees and expenses, incurred in connection therewith. In connection with a transfer of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower shall be relieved of its Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder.

Successor Borrower. Upon the defeasance of the Loan under this Section 2.4.2In connection with any Defeasance Event or Partial Defeasance Event, Borrower may, or at the option of Lender shall, assign all of its Obligations, together with the pledged Defeasance Collateral, to shall designate a successor entity designated by Borrower and approved by Lender (in each case, the “Successor Borrower”), which shall be a special purpose entity, which shall not own any other assets or have any other liabilities or operate other property (except in connection with other defeased loans held in the same securitized loan pool with the Loan). Borrower shall transfer and assign all obligations, rights and duties under and to the Note or Defeased Note (as applicable), together with the pledged U.S. Obligations to such Successor Borrower. Such successor entity shall execute an assumption agreement in form and substance satisfactory right to Lender designate or establish the Successor Borrower or to purchase, or cause the purchase of, the U.S. Obligations as provided above, may be exercised by KeyBank National Association (“KeyBank”) in its sole discretion pursuant to which it and shall be retained by KeyBank (and any successor or assign of KeyBank under a specific assignment of such retained rights separate and apart from a transfer or securitization of the Loan in whole or in part), notwithstanding any transfer or securitization of the Loan in whole or in part. Such Successor Borrower shall assume Borrower’s Obligations the obligations under the Note or Defeased Note (as applicable) and the Security Agreement and Borrower shall be relieved of its obligations under such documents; provided, however, that all references therein to “Property” shall be deemed to refer only to the U.S. Obligations purchased with the Defeasance Security AgreementDeposit or Partial Defeasance Deposit (as applicable) delivered to Lender, and upon such transfer and assignment, Borrower shall be relieved of its obligations under such documents, except with respect to any provisions therein which by their terms expressly survive repayment, defeasance or other satisfaction of the Loan or a transfer of the Property in connection with Lender’s exercise of its remedies under this Agreement and the other Loan Documents. As conditions a condition to such assignment and assumption, Borrower shall (i) deliver to Lender Lender: (a) an Additional Insolvency Opinion with respect to the Successor Borrower, and (b) an opinion or opinions of counsel in form and substance and delivered by counsel satisfactory to the applicable Rating Agencies and Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and such successor entity Successor Borrower in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (ii) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs and expenses incurred by Successor BorrowerLender, including Lender’s attorneys’ fees and expensesexpenses and any fees and expenses of any Rating Agencies, incurred in connection therewith. In connection with a transfer of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower shall be relieved of its Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder.

Successor Borrower. Upon the defeasance release of the Loan under this Properties or an individual Property, as the case may be, in accordance with Section 2.4.22.5.2, Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) may, or at the option of Lender shall, assign all of its Obligationstheir (or its) Obligations under the Note or the Defeased Note, as applicable, together with the pledged Defeasance Collateral, to a successor entity designated by Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) and approved by Lender (in each case, the “Successor Borrower”)its sole discretion. Such successor entity shall execute an assumption agreement in form and substance satisfactory to Pool 2 Lender in its sole discretion pursuant to which it shall assume Borrower’s the Obligations of Borrowers under the Note (or, if applicable, the Undefeased Note and the Defeased Note) and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower Borrowers shall (ia) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower Borrowers and such successor entity in accordance with its terms and that the Note (or, if applicable, the Undefeased Note and the Defeased Note), the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (iib) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs and expenses incurred by Successor Borrower, including attorneys’ fees and expenses, incurred in connection therewith. In connection with a transfer of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) shall be relieved of its their (or its) Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder, and the term “Borrowers” or the term “Borrower” shall be deemed revised accordingly.

Successor Borrower. Upon the defeasance of the Loan In connection with a Total Defeasance or Partial Defeasance under this Section 2.4.22.3, Borrowers shall, if required by the Rating Agencies or if Borrowers so elect or Lender requires, establish or designate a successor entity (the "Successor Borrower") which shall be a single purpose bankruptcy remote entity and which shall be approved by the Rating Agencies (if a Securitization has occurred) or reasonably approved by Lender, if requested by Lender. Any such Successor Borrower may, at Borrowers' option, be an Affiliate of Borrowers unless the Rating Agencies or at the option of Lender shall, shall require otherwise. Borrowers shall transfer and assign all of its Obligationsobligations, rights and duties under and to the Note or Defeased Note, as applicable, together with the pledged Total Defeasance Collateral or Partial Defeasance Collateral, as applicable, to a successor entity designated by Borrower and approved by Lender (in each case, the “such Successor Borrower”). Such successor entity shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it Successor Borrower shall assume Borrower’s Obligations the obligations under the Note or the Defeased Note, as applicable, and the Defeasance Security Agreement and Borrowers shall be relieved of its obligations under such documents except to the extent of any cross-collateralization required hereunder and except for property-related obligations which survive the payment of the Obligations. Borrowers shall pay $1,000 to any such Successor Borrower as consideration for assuming the obligations under the Note or the Defeased Note, as applicable, and the Security Agreement. As conditions to such assignment and assumption, Borrower Borrowers shall (i) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and such successor entity in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (ii) pay all reasonable costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (includingLender, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs including Lender's reasonable attorney's fees and expenses incurred by Successor Borrower, including attorneys’ fees and expenses, incurred in connection therewith. In connection with a transfer , and all fees, expenses and other charges of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower shall be relieved of its Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder.

Successor Borrower. Upon the defeasance of the Loan In connection with a Total Defeasance Event Defeasance Event under this Section 2.4.22.5, Borrower may, or at the option of Lender shall, shall transfer and assign all of its Obligationsobligations, rights and duties under and to the Note and the Security Agreement, together with the Total Defeasance Collateral to a newly-created successor entity, which entity shall be a single purpose, bankruptcy remote entity and which entity shall be designated or established by Lender, at Lender's option (the "Successor Borrower"). Lender shall also have the right to purchase on behalf of Borrower, or cause to be purchased on behalf of Borrower, the pledged Total Defeasance Collateral, to a successor entity designated by Borrower and approved by Lender (in each case, the “Successor Borrower”). Such successor entity shall execute an assumption agreement in form and substance satisfactory rights to Lender designate or establish the Successor Borrower as provided above or to purchase, or cause the purchase of, on behalf of Borrower the pledged Total Defeasance Collateral as provided above may be exercised by MSMCH in its sole discretion pursuant and shall be retained by MSMCH as the original Lender herein (and any successor or assign of MSMCH under a specific assignment of such retained rights separate and apart from a Secondary Market Transaction related to which it all or any portion of the Loan), notwithstanding any Secondary Market Transaction related to all or any portion of the Loan. Such Successor Borrower shall assume Borrower’s Obligations the obligations under the Note and the Defeasance Security Agreement and Borrower shall be relieved of its obligations under the Loan Documents (other than those obligations which by their terms survive a repayment, defeasance or other satisfaction of the Loan and/or a transfer of the Property in connection with Lender's exercise of its remedies under the Loan Documents). Borrower shall pay a minimum of $1,000 to any such Successor Borrower as consideration for assuming the obligations under the Note and the Security Agreement. As conditions to such assignment and assumption, Borrower shall (i) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and such successor entity in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (ii) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs and expenses incurred by Successor BorrowerLender, including attorneys’ the cost of establishing the Successor Borrower and Lender's attorney's fees and expenses, incurred in connection therewith. In connection with a transfer of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower shall be relieved of its Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder2.5.5.

Successor Borrower. Upon the defeasance of the Loan In connection with a Defeasance Event under this Section 2.4.22.5, Borrower may, or at the option of Lender shall, assign all of its Obligations, together with the pledged Defeasance Collateral, to a successor entity designated by Borrower and approved by Lender (in each case, the “Successor Borrower”). Such successor entity ) shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to be established, which it shall assume Borrower’s Obligations and the Defeasance Security Agreement. As conditions to such assignment and assumption, Successor Borrower shall be (i) deliver an SPE Entity and (ii) at Lender’s option and in Lender’s sole discretion, established and/or designated by Lender or, if Lender does not so elect, established and/or designated by Borrower. The right of Lender hereunder to Lender an opinion of counsel designate and/or establish Successor Borrower may, at the option and in form and substance and delivered by counsel satisfactory to Lender in its the sole discretion statingof the initial named Lender hereunder, among other thingsbe retained by the initial named Lender hereunder notwithstanding any Secondary Market Transaction. Borrower shall transfer and assign all obligations, that rights and duties under and to the Note, Security Agreement and Defeasance Collateral Account Agreement, together with the Defeasance Collateral to such assumption agreement is enforceable against Successor Borrower. Such Successor Borrower and such successor entity in accordance with its terms and that shall assume the obligations under the Note, the Defeasance Security Collateral Account Agreement and the Security Agreement in a manner acceptable to Lender and the Rating Agencies and Borrower shall be relieved of its obligations under the Loan Documents (other than those obligations which by their terms survive a repayment, defeasance or other satisfaction of the Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (ii) pay all costs and expenses incurred by Lender or its agents and/or a transfer of the Property in connection with such assignment and assumption (including, without limitation, Lender’s exercise of its remedies under the review of the proposed transferee and the preparation of the assumption agreement and related documentationLoan Documents). Additionally, Borrower shall pay all costs and expenses incurred by Lender and Successor Borrower, including attorneys’ attorney’s fees and expenses, incurred in connection therewith. In connection with a transfer the foregoing (including, without limitation, Lender’s costs of the Defeasance Collateral to the establishing and/or designating Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower shall be relieved of its Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunderif any).

Successor Borrower. Upon the defeasance release of the Loan under this Properties or an individual Property, as the case may be, in accordance with Section 2.4.22.5.2, Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) may, or at the option of Lender shall, assign all of its Obligationstheir (or its) Obligations under the Note or the Defeased Note, as applicable, together with the pledged Defeasance Collateral, to a successor entity designated by Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) and approved by Lender (in each case, the “Successor Borrower”)its sole discretion. Such successor entity shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it shall assume Borrower’s the Obligations of Borrowers under the Note (or, if applicable, the Undefeased Note and the Defeased Note) and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower Borrowers shall (ia) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption Pool 1 agreement is enforceable against Borrower Borrowers and such successor entity in accordance with its terms and that the Note (or, if applicable, the Undefeased Note and the Defeased Note), the Defeasance Security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (iib) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Additionally, Borrower shall pay all costs and expenses incurred by Successor Borrower, including attorneys’ fees and expenses, incurred in connection therewith. In connection with a transfer of the Defeasance Collateral to the Successor Borrower, Borrower shall, as a condition to such defeasance, deliver or cause to be delivered a non-consolidation opinion in form and substance satisfactory to Lender and the Rating Agencies. Upon such assumption, Borrower Borrowers (or in the case of a partial defeasance, the applicable Borrower) shall be relieved of its their (or its) Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are specifically intended to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder, and the term “Borrowers” or the term “Borrower” shall be deemed revised accordingly.