Existing Management and Franchise Agreements Seller has furnished to Buyer true and complete copies of the Existing Management Agreement and the Existing Franchise Agreement, which constitutes the entire agreement of the parties thereto with respect to the subject matter thereof and which have not been amended or supplemented in any respect. There are no other management agreements, franchise agreements, license agreements or similar agreements for the operation or management of the Hotel or relating to the Brand, to which Seller is a party or which are binding upon the Property, except for the Existing Management Agreement and the Existing Franchise Agreement. The Improvements comply with, and the Hotel is being operated in accordance with, all requirements of such Existing Management Agreement and the Existing Franchise Agreement and all other requirements of the Existing Manager and the Franchisor, including all “brand standard” requirements of the Existing Manager and the Franchisor. The Existing Management Agreement and the Existing Franchise Agreement are in full force and effect, and shall remain in full force and effect until the termination of the Existing Management Agreement and the Existing Franchise Agreement at Closing, as provided in Article V hereof. No default has occurred and is continuing under the Existing Management Agreement or the Existing Franchise Agreement, and no circumstances exist which, with the giving of notice, the lapse of time or both, would constitute such a default.
MANAGEMENT AGREEMENT AND FRANCHISE AGREEMENT (a) At or prior to the Closing, Seller shall terminate the Existing Management Agreement and the Existing Franchise Agreement, and Seller shall be solely responsible for all claims and liabilities arising thereunder on, prior to or following the Closing Date, except termination or similar fees, which shall be paid by Buyer. Seller shall be responsible for paying all costs related to the termination of the Existing Management Agreement and Buyer shall be responsible for paying all reasonable and actual costs of the Franchisor related to the assignment or termination, as applicable, of the Existing Franchise Agreement. (b) At Closing, Buyer shall enter into the New Management Agreement in the form attached as Exhibit E and the New Franchise Agreement, effective as of the Closing Date, containing terms and conditions acceptable to Buyer (including, without limitation, such terms and conditions as may be required to accommodate Buyer’s and/or Buyer’s Affiliates’ REIT structure). (c) Seller shall use best efforts to promptly provide all information required by the Franchisor in connection with the New Franchise Agreement. Prior to the expiration of the Review Period, Buyer and Franchisor shall agree on the form and substance of the New Franchise Agreement. Except as otherwise provided in this Contract, the New Franchise Agreement shall contain such terms and conditions as are acceptable to Buyer in its sole and absolute discretion.
Property Management Agreement The Property Management Agreement is in full force and effect and, to Borrower's Knowledge, there are no defaults thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.
Franchise Matters (a) Since June 30, 2003, the Company and its Subsidiaries (i) have maintained records of all franchise activities in which full, true, and complete entries have been made of all material dealings and transactions in relation to their franchise activities, including all offering circulars, Franchise Agreements (as defined below), correspondence with franchisees, written complaints by franchisees, and government audits, (ii) have complied in all material respects with all applicable Laws regarding franchise activities and other franchise-related matters, (iii) have complied with all franchise agreements and other agreements by which the Company or its Subsidiaries directly or indirectly grant any third party franchise rights (whether not such agreement was entered into before or after June 30, 2002, each, a “Franchise Agreement”), (iv) have obtained and maintained in place franchisee agreements which contain provisions requiring the franchisee to (A) indemnify the Company or any Subsidiary, as applicable, with respect to claims relating to the franchisee’s business and (B) to obtain insurance from financially sound and respectable insurers to cover such indemnity, naming the Company as additional insured and loss payee, (v) have timely filed with the applicable Governmental Entities all Uniform Franchise Offering Circulars and other required filings, (vi) each Uniform Franchise Offering Circular delivered to any franchisee, prospective franchisee, or Governmental Entity by the Company or any Subsidiary complied in all material respects as of the date delivered with all requirements of applicable Law, and, when delivered, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vii) the Company and its Subsidiaries have accounted for and administered in accordance with the Franchise Agreements and applicable franchise laws all advertising and marketing funds and cooperatives, if any, which the Company and its Subsidiaries administer and into which monies are paid by their franchisees. Section 3.25(a) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date hereof, of all currently effective Franchise Agreements, including the name of the franchisee and the date and expiration date of the applicable Franchise Agreement. The Company has provided the Buyer with true, complete and correct copies of all currently effective Franchise Agreements, including any amendments or modifications thereto, as of the date hereof, and there are no oral agreements, promises or understandings with respect to any currently effective Franchise Agreements. (b) Except as set forth in Section 3.25(b) of the Company Disclosure Letter: (i) the royalty rates and required advertising contributions specified in each currently effective Franchise Agreement remain in effect, are being paid when due and have not been reduced, modified, waived, or otherwise affected by any Franchise Agreement “side letter,” modification, amendment, waiver, or suspension, in whole or in part and each currently effective Franchise Agreement is in full force and effect; (ii) all franchise registrations remain in full force and effect and are not the subject of any existing or threatened action by a Governmental Entity or otherwise intended, in whole or in part, to result in the termination, revocation, modification, suspension, conditioning, or dissolution of any such franchise registration and/or any other circumstance which might or would impair, impede or preclude the Company’s ability routinely to renew or amend (as the case may be) any such franchise registration and/or enter into Franchise Agreements in any jurisdiction; (iii) there are no written, or to the Knowledge of the Company, threatened, franchisee complaints, threats to initiate litigation or arbitration, or threats to file complaints with a Governmental Entity, whether such threats have been filed either with the Company or any Subsidiary and/or any third party (including any Governmental Entity); (iv) there exists no extant formal or, to the Knowledge of the Company, informal, complaint, inquiry, investigation, or judicial or administrative action or proceeding, communicated or commenced (as the case may be) by any Governmental Entity, to or against the Company or any Subsidiary regarding its offer and sale of franchises; the administration of its franchise network; advancing or referring to any complaint received from any franchisee; inquiring of or contesting any element of the Company’s franchise program or franchise relationships (including antitrust issues such as predatory pricing or monopolization); and/or, otherwise related to the Company’s or any Subsidiary’s compliance with any franchise Law; (v) there exists no litigation or other claims asserted by any third party against any of the Company’s franchisees in which the Company or any Subsidiary is a party thereto under any theory, including negligence or “vicarious liability”; (vi) no supply Contract to which the Company or any Subsidiary is a party may be unilaterally terminated by the subject supplier as a result of this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement, if that supply contract is material to the operation of the Company’s network of franchisees, taken as a whole; (vii) since December 31, 2004, neither the Company, nor any of its Subsidiaries has refused to renew any Franchise Agreement; (viii) to the Company’s Knowledge, no franchisee of the Company or any of its Subsidiaries is currently in default in any material respect under any Franchise Agreement; (ix) since December 31, 2004, neither the Company nor any of its Subsidiaries has terminated any Franchise Agreement; and (x) the Company may enter into this Agreement and consummate the transactions contemplated hereby without the consent of any Franchisee.
Real Property Matters The Credit Parties shall have delivered to the Administrative Agent with respect to each parcel of Real Property to the extent that such parcel of Real Property becomes or should be subject to a Mortgage pursuant to Section 6.10(a) above, all of the following: (i) an American Land Title Association (ALTA) mortgagee title insurance policy or policies, or unconditional commitments therefor (a “Title Policy”) issued by a title insurance company reasonably satisfactory to the Administrative Agent (a “Title Company”), in an amount not less than the amount reasonably required therefor by the Administrative Agent (taking into account the estimated value of the property involved), insuring fee simple title to, or a valid leasehold interest in, such Real Property vested in the applicable Credit Party and assuring the Administrative Agent that the applicable Mortgage creates a valid and enforceable first priority mortgage lien on the respective Real Property encumbered thereby, subject only to Permitted Liens, which Title Policy (1) shall include an endorsement for mechanics’ liens, for revolving, “variable rate” and future advances under this Agreement and for any other matters reasonably requested by the Administrative Agent, and (2) shall provide for affirmative insurance and such reinsurance as the Administrative Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Administrative Agent; (ii) a title report issued by the Title Company with respect thereto, dated not more than 30 days prior to the date of execution of the applicable Mortgage and satisfactory in form and substance to the Administrative Agent; (iii) copies of all recorded documents listed as exceptions to title or otherwise referred to in the Title Policy or in such title report relating to such Real Property; (iv) evidence, which may be in the form of a letter or other certification from the Title Company or from an insurance broker, surveyor, engineer or other provider, as to whether (1) such Real Property is a Flood Hazard Property, and (2) the community in which such Flood Hazard Property is located is participating in the National Flood Insurance Program, and if such Real Property is a Flood Hazard Property, evidence that the applicable Credit Party has obtained flood insurance in respect of such Flood Hazard Property to the extent required under the applicable regulations of the Board of Governors of the Federal Reserve System; (v) a survey, in form and substance reasonably satisfactory to the Administrative Agent, of such Real Property, certified in a manner satisfactory to the Administrative Agent by a licensed professional surveyor reasonably satisfactory to the Administrative Agent; (vi) a certificate of the Borrower identifying any Phase I, Phase II or other environmental report received in draft or final form by any Credit Party during the five year period prior to the date of execution of the Mortgage relating to such Real Property and/or the operations conducted therefrom, or stating that no such draft or final form reports have been requested or received by any Credit Party (or its counsel), together with true and correct copies of all such environmental reports so listed (in draft form, if not finalized); and all such environmental reports shall be satisfactory in form and substance to the Administrative Agent; (vii) an opinion of local counsel admitted to practice in the jurisdiction in which such Real Property is located, reasonably satisfactory in form and substance to the Administrative Agent, as to the validity and effectiveness of such Mortgage as a lien on such Real Property encumbered thereby, and covering such other matters of law in connection with the execution, delivery, recording and enforcement of such Mortgage as the Administrative Agent may reasonably request; and (viii) upon request of the Administrative Agent and/or the Lenders, the Administrative Agent shall have received appraisals, reasonably satisfactory in form and substance to the Administrative Agent and each Lender, dated not more than 60 days prior to the date of execution of each Mortgage and addressed to the Administrative Agent and the Lenders or accompanied by a separate letter indicating that the Administrative Agent and the Lenders may rely thereon, from one or more nationally recognized appraisal firms, reasonably satisfactory to the Administrative Agent, covering (i) the Real Properties, and (ii) all other tangible property, plant and equipment owned by Holdings, the Borrower or any of its Subsidiaries, that is to be subjected to the Lien of the Security Agreement and is located at any plant or facility owned or leased by Holdings, the Borrower or any of its Subsidiaries in the United States of America, which appraisals shall set forth (A) the “fair market value” of such property (i.e., the amount at which such property would equitably exchange between a willing buyer and a willing seller, neither being under a compulsion and both having reasonable knowledge of all relevant facts on the premise that such property will continue in its present use as part of an ongoing business enterprise), (B) the “orderly disposal value” of such property (i.e., the amount that may be realized through a forced sale disposal of such property when a reasonable time to find a buyer is allowed), and (C) the “forced liquidation value” of such property (i.e., the amount that may be realized through an immediate forced sale disposal of such property), in each case as determined in accordance with sound appraisal standards.
Please see the current Washtenaw Community College catalog for up-to-date program requirements Conditions & Requirements
Reciprocal Easement Agreements (a) Neither Borrower, nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect; (b) All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise; (c) All sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing; (d) The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and (e) The terms, conditions, covenants, uses and restrictions contained in each Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.
Real Property Holding Company The Company is not a real property holding company within the meaning of Section 897 of the Code.
Franchise Fee (1) For the term of this Contract, the Concessioner shall pay to the Director for the privileges granted under this Contract a franchise fee equal to [Franchise Fee alpha number] percent ([Franchise Fee numeric number]%) of the Concessioner's gross receipts for the preceding year or portion of a year. (2) Neither the Concessioner nor the Director shall have a right to an adjustment of the fees except as provided below. The Concessioner has no right to waiver of the fee under any circumstances.
Franchise Agreements (a) Each Non-Marriott Property shall be operated under the terms and conditions of the applicable Franchise Agreement in all material respects. Each Borrower shall or shall cause the applicable Operating Lessee to (i) pay all sums required to be paid by the franchisee under each Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of each Franchise Agreement on the part of the franchisee thereunder to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of said franchisee under each Franchise Agreement, (iii) promptly notify Lender of the giving of any notice to any Borrower and/or Operating Lessee of any material default by the franchisee in the performance or observance of any of the terms, covenants or conditions of any Franchise Agreement on the part of the franchisee thereunder to be performed and observed and deliver to Lender a true copy of each such notice, and (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice of a material default under the Franchise Agreement, report regarding operations at the related Individual Property, estimates of any monetary nature and any other items reasonably requested by Lender, in each case received by any Borrower or Operating Lessee under any Franchise Agreement. (b) No Borrower shall (and shall not cause or permit any Operating Lessee to), without the prior consent of the Lender (which consent shall not be unreasonably withheld), surrender any Franchise Agreement or terminate or cancel any Franchise Agreement or modify, change, supplement, alter or amend any Franchise Agreement, in any material respect, either orally or in writing, and each Borrower hereby assigns to Lender as further security for the payment of the Indebtedness and for the performance and observance of the terms, covenants and conditions of this Loan Agreement, any and all rights, privileges and prerogatives of each Borrower to surrender any Franchise Agreement or to terminate, cancel, modify, change, supplement, alter or amend any Franchise Agreement in any respect, and any such surrender of any Franchise Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of any Franchise Agreement without the prior consent of Lender (which consent shall not be unreasonably withheld) shall be void and of no force and effect. (c) If any franchisee shall default in the performance or observance of any material term, covenant or condition of any Franchise Agreement on the part of the franchisee thereunder to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing any Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of such Franchise Agreement on the part of the franchisee to be performed or observed to be promptly performed or observed on behalf of such Borrower, to the end that the rights of said franchisee (and/or such Borrower and/or Operating Lessee) in, to and under such Franchise Agreement shall be kept unimpaired and free from default. Any such amounts so advanced by Lender together with interest thereon from the date expended by Lender of the Default Rate shall be part of the Indebtedness and Borrower shall immediately repay such amounts to Lender upon demand. Pursuant to the terms of the applicable Subordination Attornment and Security Agreement and/or Assignment of Management Agreement, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to Lender a copy of any notice sent to any Borrower and/or Operating Lessee of any default under any Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. (d) Each Borrower shall (or shall cause the applicable Operating Lessee to) exercise each individual option, if any, to extend or renew the term of each Franchise Agreement upon demand by Lender made at any time within ninety (90) days prior to the last day upon which any such option may be exercised, and each Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise (or cause the applicable Operating Lessee to exercise) any such option in the name of and upon behalf of such Borrower should such Borrower fail to do so, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. (e) Any sums expended by Lender pursuant to this Section shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Indebtedness, shall be secured by the lien of the Mortgage and the other Loan Documents and shall be immediately due and payable within two (2) Business Days after demand by Lender therefor. (f) Each Borrower shall, promptly upon request of Lender, but no more than two (2) times in any calendar year during the term of the Loan (unless (i) an Event of Default has occurred and is continuing or (ii) such request is occasioned in connection with a Secondary Market Transaction) use its diligent best efforts to obtain and deliver (or cause to be delivered) an estoppel certificate from each Franchisor stating that (i) each applicable Franchise Agreement is in full force and effect and has not been modified, amended or assigned, (ii) neither such Franchisor nor the franchisee named thereunder is in default under any of the terms, covenants or provisions of each applicable Franchise Agreement and such Franchisor knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under each applicable Franchise Agreement, (iii) neither such Franchisor nor the franchisee thereunder has commenced any action or given or received any notice for the purpose of terminating any applicable Franchise Agreement and (iv) all sums due and payable to such Franchisor under each applicable Franchise Agreement have been paid in full. (g) Upon the termination of any Franchise Agreement, each Borrower shall (or shall cause Operating Lessee to) promptly enter into a new Franchise Agreement with a replacement Franchisor, which shall deliver a comfort or similar letter to and in favor of Lender, all upon terms and conditions reasonably acceptable to Lender.
