Common use of Successor Borrower Clause in Contracts

Successor Borrower. Upon the release of the Property in accordance with Section 2.6.2, Borrower may or, at the option of Lender, shall, assign all its Obligations, together with the pledged Defeasance Collateral, to a single-purpose, bankruptcy-remote successor entity (under criteria established by the Rating Agencies) designated by Lender or, at Lender’s option, designated by Borrower and approved by Lender in 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 Obligations and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (a) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender and the Rating Agencies in their 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 (and after giving effect to the release of the Mortgage and other collateral documents described above), are enforceable against such successor entity in accordance with their respective terms and (b) 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). 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 release of the Property in accordance with Section 2.6.22.5.2, Borrower may or, at the option of Lender, shall, shall assign all its Obligations, together with the pledged Defeasance Collateral, to a single-successor, single purpose, bankruptcy-bankruptcy remote successor entity (under criteria established by the Rating Agencies) designated by Lender in its sole discretion or, at the option of Lender’s option, designated by Borrower and approved by Lender (in each case, the "Successor Borrower"). Lender shall have the right to establish or designate the Successor Borrower and to purchase, or cause to be purchased, the Defeasance Collateral (the "Defeasance Rights and Obligations"). Such rights to designate or establish the Successor Borrower as provided above or to purchase, or cause the purchase of, on behalf of Borrower the pledged Defeasance Collateral as provided above may be exercised by Starwood Mortgage Capital LLC in its sole discretiondiscretion and shall be retained by Starwood Mortgage Capital LLC as the original Lender herein (and any successor or assign of Starwood Mortgage Capital LLC under a specific assignment of such retained rights separate and apart from a Secondary Market Transaction related to all or any portion of the Loan), notwithstanding any Secondary Market Transaction related to all or any portion of the Loan. 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 's Obligations and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (ai) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender and the Rating Agencies in their 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 (and after giving effect to the release of the Mortgage and other collateral documents described above)assumed, are enforceable against such successor entity in accordance with their respective terms terms, and (bii) 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 reasonable attorneys' fees and expenses, incurred in connection therewith. 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 's rights and remedies hereunder.

Successor Borrower. Upon the release of the Property Properties or an individual Property, as the case may be, in accordance with Section 2.6.22.5.2, Borrower may orBorrowers may, or at the option of Lender, Lender shall, assign all its Obligationsof their Obligations under the Note or the Defeased Note, as applicable, together with the pledged Defeasance Collateral, to a single-purpose, bankruptcy-remote successor entity (under criteria established by the Rating Agencies) designated by Lender or, at Lender’s option, designated by Borrower Borrowers and approved by Lender in 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 Borrowers' Obligations under the Note and the Defeased Note, as applicable, and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower Borrowers shall (ai) deliver to Lender an opinion of counsel in form and substance and delivered by counsel reasonably satisfactory to Lender and the Rating Agencies in their 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 the Defeased Note, as the case may be, the Defeasance Security Agreement and the other Loan Documents, as so assumed (and after giving effect to the release of the Mortgage and other collateral documents described above)assumed, are enforceable against such successor entity in accordance with their respective terms terms, and (bii) pay all reasonable, out-of-pocket 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). Upon such assumption, Borrower Borrowers shall be relieved of its their 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 's rights and remedies hereunder.

Successor Borrower. Upon the release of the Property in accordance In connection with Section 2.6.2a Defeasance, Borrower may or, at the option of Lender, shall, shall assign all its Obligations, together with the pledged Defeasance Collateral, to a single-purpose, bankruptcy-remote successor entity (under criteria established by the Rating Agencies) designated by Lender in its sole discretion or, at the option of Lender’s option, designated by Borrower and approved by Lender (in its each case, the “Successor Borrower”). Lender shall have the right to establish or designate the Successor Borrower and to purchase, or cause to be purchased, the Defeasance Collateral (the “Defeasance Rights and Obligations”), which rights may be exercised in Lender’s sole discretiondiscretion and shall be retained by the Lender named herein notwithstanding the transfer or securitization of the Loan (but subject to the payment of any residual value to Borrower or Guarantor in accordance with Section 2.5.7 below). 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 and agree to pay (as applicable) Borrower’s Obligations and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (ai) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender and the Rating Agencies in their 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 (and after giving effect to the release of the Mortgage and other collateral documents described above)assumed, are enforceable against such successor entity in accordance with their respective terms terms, and (bii) 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 actual, out-of-pocket costs and expenses incurred by Successor Borrower, including reasonable attorneys’ fees and expenses, incurred in connection with the preparation of assignment and assumption agreement. 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 stated to survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder, and Guarantor shall be released from and relieved of any liability under the Guaranty and other Loan Documents on a “go-forward” basis to the extent (and only to the extent) that such liability first arose and accrued solely and entirely following the Release Date (but, in the case of Hazardous Substances (as defined in the Environmental Indemnity) related indemnities, to the extent (and only to the extent) that such claims arose solely from Hazardous Substances that (A) were not present in, on, under or migrating from, or a threat to the Property prior to the date of the closing of such conveyance, and (B) were not the result of any act or negligence of Borrower, Guarantor or any of their respective Affiliates, agents or contractors). Notwithstanding the foregoing, this exclusion from liability shall not apply in the case of clause (xiii) of the Borrower’s Recourse Liabilities in Section 11.22 of this Agreement.

Successor Borrower. Upon the release defeasance of the Property in accordance with Loan under this Section 2.6.22.4.2, Borrower may ormay, or at the option of Lender, Lender shall, assign all of its Obligations, together with the pledged Defeasance Collateral, to a single-purpose, bankruptcy-remote successor entity (under criteria established by the Rating Agencies) designated by Lender or, at Lender’s option, designated by Borrower and approved by Lender in its sole discretionreasonable discretion (in each case, the “Successor Borrower”). Such successor entity Successor Borrower shall execute an assumption agreement in form and substance reasonably satisfactory to Lender in its sole discretion pursuant to which it shall assume Borrower’s Obligations and, unless the Successor Borrower executed and delivers the Defeasance Security Agreement, the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower or Successor Borrower shall (ai) deliver to Lender an opinion of counsel in form and substance and delivered by counsel reasonably satisfactory to Lender Lender, opining (subject to customary qualifications and the Rating Agencies in their sole discretion stating, among other things, that assumptions) that: such assumption agreement has been duly authorized by the Successor Borrower and is enforceable against the Successor 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 (and after giving effect to the release of the Mortgage and other collateral documents described above)assumed, are enforceable against such successor entity in accordance with their respective terms terms, and (bii) pay all reasonable out-of-pocket 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 review of the assumption agreement and related documentation). 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 reasonably 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 expressly survive the termination, satisfaction or assignment of this Agreement or the exercise of Lender’s rights and remedies hereunder.

Successor Borrower. Upon the release of the Property Properties in accordance with Section 2.6.22.6, Borrower may ormay, or at the option of Lender, Lender shall, assign all its Obligationsof their Obligations under the Note, together with the pledged Defeasance Collateral, to a single-purpose, bankruptcy-remote successor entity (under criteria established by the Rating Agencies) designated by Lender in its sole discretion or, at the option of Lender’s option, designated by Borrower and approved by Lender in its sole discretion. Such successor entity shall execute an assumption agreement in form and substance satisfactory to Lender in its sole reasonable discretion pursuant to which it shall assume Borrower’s Obligations under the Note and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower Borrowers shall (ai) deliver to Lender an opinion of counsel in form and substance and delivered by counsel reasonably satisfactory to Lender and the Rating Agencies in their 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, the Defeasance Security Agreement and the other Loan Documents, as so assumed (and after giving effect to the release of the Mortgage and other collateral documents described above)assumed, are enforceable against such successor entity in accordance with their respective terms terms, and (bii) pay all reasonable, out-of-pocket 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). Upon such assumption, Borrower Borrowers shall be relieved of its their Obligations hereunder, under the other Loan Documents and under the Defeasance Security Agreement other than those Obligations which are EAST\87098743.3 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 release of the Property Properties in accordance with Section 2.6.2, Borrower may or, at the option of Lender, shall, assign all its Obligations, together with the pledged Defeasance Collateral, to a single-purpose, bankruptcy-remote successor entity (under criteria established by the Rating Agencies) designated by Lender or, at Lender’s option, designated by Borrower and approved by Lender in its sole reasonable discretion. Such successor entity shall execute an assumption agreement in form and substance reasonably 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 (a) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender and the Rating Agencies in their 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 (and after giving effect to the release of the Mortgage and other collateral documents described above)assumed, are enforceable against such successor entity in accordance with their respective terms and (b) pay all reasonable 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). 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 release defeasance of the Property in accordance with Loan under this Section 2.6.22.4.2, Borrower may ormay, or at the option of Lender, Lender shall, assign all of its Obligations, together with the pledged Defeasance Collateral, to a single-purpose, bankruptcy-remote successor entity (under criteria established by the Rating Agencies) designated by Lender or, at Lender’s option, designated by Borrower and approved by Lender Xxxxxx (in its sole discretioneach 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 BorrowerXxxxxxxx’s Obligations and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (ai) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender and the Rating Agencies in their 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 (and after giving effect to the release of the Mortgage and other collateral documents described above)assumed, are enforceable against such successor entity in accordance with their respective terms terms, and (bii) 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. 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 LenderXxxxxx’s rights and remedies hereunder.