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.

Appears in 8 contracts

Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)

Franchise Agreements. (ai) Each ~~Non-Marriott~~ Individual Property shall be operated under the terms and conditions of the applicable Franchise ~~Agreement in all material respects~~Agreement. 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 (beyond any applicable notice, grace or cure period) 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. (bii) 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, conditioned or delayed), 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, conditioned or delayed) shall be void and of no force and effect. (ciii) 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~~observed beyond applicable notice and cure periods contained therein, and Borrower or Operating Lessee is not contesting the validity of such default in good faith, 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 reasonable 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. (div) 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. (ev) 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 written demand by Lender therefor. (fvi) 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. (gvii) 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~~Lender in its reasonable discretion.

Appears in 3 contracts

Samples: Loan Agreement, Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)

Appears in 2 contracts

Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)

Franchise Agreements. (ai) ~~Each Non-Marriott Property shall be operated under~~ Subject to the terms and conditions set forth herein, each Lessee for each Hotel operating under a Franchise Agreement as set forth on Exhibit 2(d) shall exercise its good faith commercial efforts to assist the ------------ TRS and the Lessors in obtaining an assignment of each Franchise Agreement or a replacement franchise agreement (or commitment therefor) of the same brand for the balance of the existing term in favor of the TRS (or, in the case of the Sale Hotels, the TRS or the Lessor) on terms then applicable for the issuance of such replacement franchise agreements (or commitments therefor) and effective as of the Termination Date (or such other date as may be requested by the REIT), including without limitation executing any termination agreements or other documents reasonably required by the Franchisors to effect such transfer or replacement. (ii) Notwithstanding Section 2(d)(i) above, if the REIT determines, in its sole discretion, that a Franchisor's Product Improvement Plan ("PIP"), new franchise terms or change of ownership terms or costs with respect to one or more Hotels are unreasonable, the REIT may elect to so notify the Lessees, in which event, at the direction of the REIT, the Lessees shall either (A) maintain the Franchise Agreement for that Hotel, subject to the right of the REIT or the TRS to require the Lessees to transfer the franchise license to the TRS at any time upon notice from the REIT, subject to Franchisor consent, or (B) terminate the Franchise Agreement (in ~~all material respects. Each Borrower~~ which event the REIT shall ~~or shall cause the applicable Operating Lessee to (i)~~ pay all ~~sums required to be paid by~~ costs associated with terminating such Franchise Agreement). In the ~~franchisee under each~~ event the REIT so notifies the Lessees that the REIT has determined that the Lessees shall maintain a Franchise Agreement, (i) the TRS or the Lessor shall be responsible for paying or reimbursing the Lessees for the franchise fees payable by Lessees to the Franchisor under any such Franchise Agreement after the Termination Date and (ii) ~~diligently perform, observe and enforce all of~~ the ~~terms, covenants and conditions~~ Lessees shall exercise good faith commercial efforts to assist the TRS in obtaining an assignment or replacement of each such Franchise Agreement on for the ~~part of~~ TRS or a Lessor, if requested by 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, REIT. (iii) ~~promptly notify Lender~~ The REIT Parties will pay all documented change of ~~the giving of any notice to any Borrower~~ ownership fees, termination fees, PIP costs and/or ~~Operating Lessee of any material default~~ other fees and costs required by the ~~franchisee~~ Franchisors and incurred in connection with Section 2(d)(i) and (ii) hereof. Notwithstanding the ~~performance~~ foregoing, the Lessees will continue to pay when due, and will be responsible for, all franchise fees payable under the Franchise Agreements through the Termination Date. Subject to the provisions of this Agreement and the Short Term Management Agreements, the REIT Parties shall reimburse the Lessees for all franchise fees payable under the Franchise Agreements with respect to the Sale Hotels arising on or ~~observance of any of~~ after June 1, 2001. Upon request by the ~~terms~~REIT Parties, ~~covenants or conditions of any Franchise Agreement on~~ the ~~part of~~ Lessees will request from the ~~franchisee thereunder to be performed and observed~~ Franchisors, and deliver to ~~Lender a true copy of each such notice~~the REIT Parties upon receipt, ~~and (iv) promptly deliver~~ estoppel letters with respect 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 AgreementAgreements. (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.

Appears in 1 contract

Samples: Lease Termination Agreement (Humphrey Hospitality Trust Inc)

Franchise Agreements. (a) ~~Each Non-Marriott Property shall be operated under the terms and conditions~~ The Franchise Agreements in effect as 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 date hereof are as set forth on SCHEDULE 4.22 annexed hereto and ~~enforce all of the terms, covenants and conditions of each Franchise Agreement on the~~ made a 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 noticehereof, 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 Agreements 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~~constitute the legal, ~~amended~~ valid and binding obligation of Borrower and each Franchisee party thereto. No material events of default exist thereunder and there exist no events 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 conditions which with the giving of notice or ~~both,~~ the lapse of time or both would ~~constitute an~~ result in a material event of ~~default under each applicable~~ default. Borrower shall not amend, modify, supplement or terminate any Franchise ~~Agreement~~Agreements or any exhibits thereto or any related agreement now or hereafter entered into between a Franchisee and Borrower, ~~(iii) neither such Franchisor nor~~ without the ~~franchisee thereunder has commenced any action or given or received any notice for the purpose~~ prior written consent 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~~Lender. (gb) ~~Upon~~ Borrower shall advise each Franchisee, in writing, that payment of all amounts under any Franchise Agreement or any promissory note executed by such Franchisee in favor of Borrower has been assigned as collateral to Lender. (c) Borrower agrees to provide Lender with written notice within three (3) Business Days after Borrower enters into any Franchise Agreement not set forth on SCHEDULE 4.22 hereto (the ~~termination~~ "Additional Franchise Agreements"). In each instance, Borrower shall deliver to Lender true and accurate copies of each such Additional Franchise Agreement. Such Additional Franchise Agreements and all payments arising thereunder shall be subject to the provisions of this Agreement. (d) Borrower shall not make any loans or advance, to or for the account of any Franchisee. Borrower has not made any agreement with any Franchisee for any extension of time for the payment of any amounts payable to Borrower under any Franchise Agreement, ~~each~~ except as disclosed on SCHEDULE 4.22, any compromise or settlement for less than the full amount thereof, any release of any Franchisee from liability therefor, or any deduction therefrom. Borrower will not make any agreement with any Franchisee for any extension of time for the payment of any amounts payable to Borrower under any Franchise Agreement, other than in the ordinary course of business and in accordance with past practices of Borrower and practices not uncommon to the industry, and in no event where any amount would be deferred for any period of time longer than six months. Borrower further acknowledges, confirms and agrees that no payments have been or shall be made in respect of the foregoing except payments immediately delivered to the Lender as required hereunder. In the event that any obligation due and owing Borrower by any Franchisee is evidenced by an instrument, note or chattel paper, Borrower shall (deliver such original instrument, note or ~~shall cause Operating Lessee to) promptly enter into a new Franchise Agreement with a replacement Franchisor~~chattel paper to Lender, ~~which shall deliver a comfort or similar letter to and~~ duly endorsed in favor of Lender~~, all upon terms and conditions reasonably acceptable to Lender~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Kahala Corp/)

Franchise Agreements. (a) ~~Each Non-Marriott Property~~ Subject to the terms of Section 5.24, Borrower shall cause any Mortgage Loan Borrower and Maryland Owner that is party to a Franchise Agreement to (i) promptly perform and observe all of the covenants required to be ~~operated~~ performed and observed by it under the ~~terms and conditions of the applicable~~ related 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~~ respects 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (~~iii~~ii) 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~~ under 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~~ which it is aware; (iviii) promptly deliver to Lender a copy of ~~each financial statement, business plan, capital expenditure plan,~~ any notice of a default or other material ~~default~~ notice received by such Mortgage Loan Borrower or Maryland Owner or delivered by such Mortgage Loan Borrower or Maryland Owner under the related Franchise Agreement; (iv) promptly give notice to Lender of any notice or information that such Mezzanine 1 Borrower, Mortgage Loan Borrower or Maryland Owner receives which indicates that Franchisor is terminating any Franchise Agreement; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Franchisor under the related Franchise Agreement, ~~report regarding operations~~ including causing each Individual Property that is subject to a Franchise Agreement to be operated, maintained and managed at all times and in a manner consistent with the standards for the operation, management and maintenance set forth in 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 Except as permitted in Section 5.24, Borrower shall (not, and shall not ~~cause or~~ permit any ~~Operating Lessee~~ Mortgage Loan Borrower or Maryland Owner 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 written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) ~~shall be void and~~ surrender, terminate or cancel a Franchise Agreement to which it is a party or otherwise replace a Franchisor or enter into any other Franchise Agreement with respect to any Individual Property; (ii) reduce or consent to the reduction of ~~no force and effect.~~ the term of a Franchise Agreement to which it is a party; (ciii) ~~If any franchisee shall default in~~ increase or consent to the ~~performance or observance~~ increase of the amount of any ~~material term, covenant or condition of any~~ charges under a 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, which it is a party; (iv) to the ~~end that~~ extent it has the ~~rights of said franchisee (and/or such Borrower and/or Operating Lessee) in,~~ right to ~~and under such Franchise Agreement shall be kept unimpaired and free from default. Any such amounts~~ do 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 pursuant to the terms of the applicable ~~Subordination Attornment and Security Agreement and/or Assignment of Management~~ Franchise Agreement, permit the applicable Franchisor to assign or encumber its right or interest in the Franchise Agreement to which it is a party; or (v) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Franchise Agreement to which it is a party. (c) Borrower shall not, and shall not permit any Mortgage Loan Borrower or Maryland Owner to, pledge, transfer, assign, mortgage, encumber or allow to be encumbered its respective interest in the Franchise Agreement or any interest therein except as provided in the Mortgage Loan Documents to Mortgage Loan Lender and ~~any person designated by Lender shall have~~except as provided in the Other Mezzanine Loan Documents to the Other Mezzanine Loan Lenders. Without limiting the foregoing, ~~and are hereby granted,~~ to the extent it has the right to ~~enter upon~~ do so pursuant to the terms of 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, Borrower shall not, and shall not permit any Mortgage Loan Borrower or Maryland Owner to, consent to any assignment by a Franchisor of such ~~notice shall constitute full protection to Lender for any action taken~~ Franchisor’s interest in the Franchise Agreement or ~~omitted to be taken by Lender in good faith, in reliance thereon~~its right and interests thereunder. (d) ~~Each~~ In the event that Borrower ~~shall (~~causes any Mortgage Loan Borrower or ~~shall cause the applicable Operating Lessee to) exercise each individual option, if any,~~ Maryland Owner to ~~extend or renew the term of each Franchise Agreement upon demand by Lender made~~ replace a Franchisor 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~~ pursuant to this Section 5.23 and Section 5.24, the replacement Franchisor must be a Qualified Franchisor and the requirements of ~~Default has occurred and is continuing or (ii)~~ Section 5.24 must be satisfied with respect to 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 Qualified Franchisor’s replacement 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.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Franchise Agreements. ~~(a) Each Non-Marriott Property shall be operated under~~ To the ~~terms and conditions~~ extent of the ~~applicable Franchise Agreement in all material respects. Each Borrower shall~~ Company's actual control and knowledge, the Company shall, or shall cause ~~the applicable Operating Lessee~~ its Affiliates to (i) ~~pay~~ operate its or their hotels in accordance with the terms of any Franchise Agreements in effect as of the date hereof (each, a "Franchise Agreement" and collectively, the "Franchise Agreements"); (ii) promptly perform and observe (or cause to be performed or observed) all ~~sums~~ of the covenants required to be ~~paid~~ performed and observed by it or them under the ~~franchisee under each~~ Franchise ~~Agreement, (ii) diligently perform, observe~~ Agreements 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (iii) promptly notify the Lender of any event of default under the ~~giving~~ Franchise Agreements of ~~any notice to any Borrower and/or Operating Lessee of any material default by the franchisee in the performance~~ which it 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 they are aware; (iv) promptly deliver to the Lender a copy of each financial statement, business plan, capital ~~expenditure~~ expenditures plan, ~~notice of a material default~~ notice, report and estimate received by it or them under the Franchise ~~Agreement~~Agreements; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by the franchisor under the Franchise Agreements. To the extent of the Company's actual control and knowledge, ~~report regarding operations at~~ without Lender's prior consent, 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 Company shall (not and shall not ~~cause~~ permit the lessee under any percentage lease or ~~permit~~ any ~~Operating Lessee~~ manager to): (i) surrender, ~~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~~ Agreement; (ii) reduce or consent to the reduction of the term of any Franchise Agreement; (iii) increase or consent to the increase of the amount of any charges under any Franchise Agreement; (iv) otherwise modify, change, supplement, alter or ~~amend~~ amend, or waive or release any ~~Franchise Agreement~~of its rights and remedies under, 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~~ (v) suffer or ~~amend~~ permit the occurrence of continuance a default beyond any applicable cure period under any Franchise Agreement in (or any ~~respect, and any~~ successor franchise agreement with a national hotel chain approved by the Lender) if such ~~surrender of~~ default permits the franchiser to terminate or cancel 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 successor franchise agreement 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~~ national hotel chain approved 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~~Lender). (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.

Appears in 1 contract

Samples: Credit Agreement (Apple Suites Inc)

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~~ Any Franchise Agreement with respect to a Pool A Property or any consent delivered by any franchisor under any such Franchise Agreement shall cease to be ~~paid by~~ in full force and effect other than with the ~~franchisee under each Franchise Agreement,~~ express consent of the Agent pursuant to subsection 6.20G to the extent required thereunder or (ii) ~~diligently perform, observe and enforce all of the terms, covenants and conditions of each Franchise Agreement on the part of the franchisee~~ any party thereto shall deny or disaffirm its obligations thereunder ~~to be performed, observed and enforced to the end that all things~~ or 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 deny or ~~observance of any of the terms, covenants~~ disaffirm its obligations thereunder 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 due performance or observance of any material term, covenant or ~~condition of any Franchise Agreement~~ 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 party to be performed or observed pursuant thereto and any applicable cure period shall have expired, and in any such event the Borrower shall have failed 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~~ replace such Franchise Agreement within 60 days of such default (after the expiration of any such cure period) or disaffirmation with a franchise acceptable to the Agent, in its sole discretion; (i) upon the occurrence of any Event of Default described in subsection 8.1J or 8.1K, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be ~~kept unimpaired~~ entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and ~~free from default~~(c) all other Obligations shall automatically become immediately due and payable, without notice, presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Borrower and the obligations of each Lender to make any Loan, the obligation of Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) during the continuance of any other Event of Default, the Agent may, in its sole discretion, by written notice to the Borrower, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable and the obligation of each Lender to make any Loan, the obligation of Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; PROVIDED that the foregoing shall not affect in any way the obligations of Lenders under subsection 3.3C(i). Any ~~such~~ amounts ~~so advanced~~ described in clause (b) above, when received by ~~Lender together with interest thereon from the date expended by Lender of the Default Rate~~ Agent, shall be ~~part of the Indebtedness and Borrower shall immediately repay such amounts to Lender upon demand. Pursuant~~ held by Agent pursuant to the terms of the ~~applicable Subordination Attornment and Security~~ Collateral Account 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~~ applied as therein provided. The occurrence of ~~payment to Lender, shall be deemed to~~ any condition or event may 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~~a Potential Event of Default) 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~~ more than one provision 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 fullthis subsection 8.1. (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.

Appears in 1 contract

Samples: Senior Secured Revolving Credit Agreement (Capstar Hotel Co)

Franchise Agreements. If any Borrowing Base Property is subject to a Franchise Agreement. (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~~ such agreement shall be ~~paid by the franchisee under each Franchise Agreement~~with a Qualified Franchisor, (ii) each Loan Party shall (A) diligently ~~perform,~~ perform and observe ~~and enforce~~ in all material respects all of the terms, covenants and conditions of each Franchise ~~Agreement~~ Agreement, on the part of the ~~franchisee thereunder~~ applicable Loan Party to be ~~performed,~~ performed and observed ~~and enforced~~ to the end that all things shall be done which are reasonably necessary to keep unimpaired the material rights of ~~said franchisee~~ such Loan Party under ~~each~~ such Franchise Agreement, and (~~iii~~B) promptly notify ~~Lender~~ Administrative Agent of the giving of any notice by any Franchisor to any ~~Borrower and/or Operating Lessee~~ Loan Party of any ~~material~~ default by ~~the franchisee~~ any Loan Party in any material respect in the performance or observance of any of the terms, covenants or conditions of any Franchise Agreement on the part of ~~the franchisee thereunder~~ any Loan Party to be performed and observed and deliver to ~~Lender~~ Administrative Agent 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~~ To the extent assignable, each Loan Party shall ~~(and shall not cause or permit any Operating Lessee to)~~assign to Administrative Agent, ~~without~~ for the ~~prior consent~~ benefit of ~~the Lender (which consent shall not be unreasonably withheld)~~Lenders, 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 and performance of the ~~Indebtedness and for~~ Obligations, all the ~~performance and observance of the terms, covenants and conditions of this Loan Agreement, any and all~~ rights, privileges and prerogatives of ~~each Borrower~~ such Loan Party to surrender ~~any~~ the applicable Franchise ~~Agreement~~ Agreement, or to terminate, cancel, modify, change, supplement, alter or amend ~~any~~ such Franchise ~~Agreement~~ Agreement, in any material respect, and any such surrender of ~~any~~ such Franchise ~~Agreement~~ Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment of ~~any~~ such Franchise Agreement in any material respect, without the prior written consent of ~~Lender~~ Administrative Agent (~~which consent shall~~ not to be unreasonably withheld, conditioned or delayed) other than as expressly permitted by this Agreement shall be void and of no force and effect~~. (c)~~ . If any ~~franchisee~~ Loan Party 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~~ such Loan Party to be performed or observed, which, if not remedied within any applicable notice, grace and/or cure period, would give the applicable Franchisor the right to terminate such Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing any ~~Borrower~~ Loan Party from any of its obligations ~~hereunder~~hereunder and to the extent not prohibited under such Franchise Agreement or any comfort letter issued by the applicable Franchisor, ~~Lender~~ provided that no Loan Party makes any representation, covenant or warranty as to any Franchisor’s acceptance of such cure, Administrative Agent 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~~ each Franchise Agreement on the part of ~~the franchisee~~ any Loan Party to be performed or observed to be promptly performed or observed on behalf of such ~~Borrower~~Loan Party, to the end that the rights of ~~said franchisee (and/or~~ such ~~Borrower and/or Operating Lessee)~~ Loan Party in, to and under such Franchise Agreement shall be kept unimpaired and free from default, provided that, no Loan Party makes any representation, covenant or warranty as to such Franchisor’s acceptance of such cure. ~~Any such amounts so advanced~~ Upon the occurrence and during the continuance of an Event of Default, Administrative Agent and any Person designated by ~~Lender together with interest thereon from the date expended by Lender of the Default Rate~~ Administrative Agent shall ~~be part of the Indebtedness and Borrower shall immediately repay such amounts to Lender upon demand. Pursuant~~ have (subject to the terms of this Agreement, the applicable ~~Subordination Attornment and Security Agreement and/or Assignment of Management~~ Franchise Agreement, ~~Lender~~ the rights of tenants under the applicable Leases, and ~~any person designated by Lender shall have~~the terms of the Permitted Encumbrances), and are hereby granted, the right to enter upon the applicable ~~Individual~~ Borrowing Base Property at any time and from time to time for the purpose of taking any such action. If ~~any~~ the applicable Franchisor shall deliver to ~~Lender~~ Administrative Agent a copy of any notice sent to any ~~Borrower and/or Operating Lessee~~ Loan Party of ~~any~~ default under any Franchise Agreement, which, if not remedied within any applicable notice, grace and/or cure period, would give such Franchisor the right to terminate such Franchise Agreement, such notice shall constitute full protection to ~~Lender~~ Administrative Agent for any action taken or omitted to be taken by ~~Lender~~ Administrative Agent in good faith, in reliance thereon. (c) Each Loan Party shall, (i) deliver to Administrative Agent a Franchisor Comfort Letter with respect to each Franchise Agreement and (ii) from time to time upon request of Administrative Agent, but, in no event more frequently than one (1) time in any calendar year so long as no Event of Default has occurred and is continuing, use commercially reasonable efforts to obtain from each Franchisor such certificates of estoppel with respect to compliance by such Loan Party with the terms of the applicable Franchise Agreement as may be reasonably requested by Administrative Agent. (d) ~~Each Borrower shall (or shall cause~~ Without limitation of the foregoing, each Loan Party, upon the request of Administrative Agent, but solely to the extent such Loan Party has the right under the applicable ~~Operating Lessee to) exercise each individual option~~Franchise Agreement without penalty or fee, shall terminate such Franchise Agreement and replace the applicable Franchisor thereunder, if ~~any, to extend or renew~~ at any time during the term of ~~each~~ this Agreement: (i) such Franchisor shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (ii) there exists an Event of Default, or (iii)there exists a material default by such Franchisor under such Franchise Agreement ~~upon demand by Lender made at~~ after the expiration of any applicable notice and cure periods. At such time ~~within ninety (90) days prior~~ as the applicable Franchisor may be removed, a Qualified Franchisor shall as soon as is reasonably practicable assume the responsibilities of Franchisor with respect 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~~ applicable Borrowing Base Property pursuant 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 interesta replacement Franchise Agreement. (e) Any sums expended by ~~Lender~~ Administrative Agent pursuant to ~~this~~ Section 7.24(b) shall (i) bear interest at the Default Rate from the date such cost is incurred to the date of payment to ~~Lender~~Administrative Agent, ~~shall~~ (ii) be deemed to constitute a portion of the ~~Indebtedness~~Obligations, ~~shall~~ (iii) be secured by the lien of the ~~Mortgage~~ Mortgages and the other Loan Documents and ~~shall~~ (iv) be immediately due and payable ~~within two (2) Business Days~~ promptly after written demand by ~~Lender~~ Administrative Agent 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.

Appears in 1 contract

Samples: Credit Agreement (Braemar Hotels & Resorts Inc.)

Franchise Agreements. ~~(a) Each Non-Marriott Property shall be operated under~~ To the ~~terms and conditions~~ extent of the ~~applicable Franchise Agreement in all material respects. Each Borrower shall~~ Company’s actual control and knowledge, the Company shall, or shall cause ~~the applicable Operating Lessee to~~ its Affiliates to, (i) ~~pay~~ operate its or their hotels in material compliance with the terms of any Franchise Agreements in effect as of the date hereof (each, a “Franchise Agreement” and collectively, the “Franchise Agreements”); (ii) promptly perform and observe (or cause to be performed or observed) all ~~sums~~ of the material covenants required to be ~~paid~~ performed and observed by it or them under the ~~franchisee under each~~ Franchise ~~Agreement, (ii) diligently perform, observe~~ Agreements 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (iii) promptly notify the Lender of any event of default under the ~~giving~~ Franchise Agreements of ~~any notice to any Borrower and/or Operating Lessee of any material default by the franchisee in~~ which it or they are aware; and (iv) promptly enforce the performance or and observance of ~~any~~ all of the ~~terms,~~ covenants ~~or conditions of any Franchise Agreement on the part of the franchisee thereunder~~ required 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~~ by the franchisor under the Franchise ~~Agreement~~Agreements. To the extent of the Company’s actual control and knowledge, ~~report regarding operations at~~ without Lender’s prior consent, the ~~related Individual Property~~Company shall not, ~~estimates of any monetary nature and any other items reasonably requested by Lender~~shall not permit its Affiliates to, ~~in each case received by any Borrower or Operating Lessee under any Franchise Agreement. (b) No Borrower shall (~~and shall not ~~cause~~ permit the lessee under any percentage lease or ~~permit~~ any ~~Operating Lessee~~ manager to): (i) surrender, ~~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~~ Agreement; (ii) reduce or consent to the reduction of the term of any Franchise Agreement; (iii) increase or consent to the increase of the amount of any charges under any Franchise Agreement; (iv) otherwise modify, change, supplement, alter or ~~amend~~ amend, or waive or release any ~~Franchise Agreement~~of its rights and remedies under, 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~~ (v) suffer or ~~amend~~ permit the occurrence of continuance a default beyond any applicable cure period under any Franchise Agreement in (or any ~~respect, and any~~ successor franchise agreement with a national hotel chain approved by the Lender) if such ~~surrender of~~ default permits the franchiser to terminate or cancel 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 successor franchise agreement 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~~ national hotel chain approved 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~~Lender). (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.

Appears in 1 contract

Samples: Loan Agreement (Apple REIT Seven, Inc.)

Franchise Agreements. (a) ~~Each Non-Marriott Property~~ The Improvements on the Properties shall be operated under the terms and conditions of the ~~applicable~~ Franchise ~~Agreement in all material respects~~Agreements. ~~Each Borrower shall or shall cause the applicable~~ Operating Lessee to shall (i) pay all sums required to be paid by Operating Lessee under the ~~franchisee under each~~ Franchise ~~Agreement~~Agreements, (ii) diligently perform, observe and enforce all of the material terms, covenants and conditions of ~~each~~ the Franchise ~~Agreement~~ Agreements on the part of ~~the franchisee thereunder~~ Operating Lessee to be performed, observed and enforced to in accordance with the ~~end that all things shall be done which are necessary to keep unimpaired the rights of said franchisee under each Franchise Agreement~~terms thereof, (iii) promptly notify Lender of the giving of any notice to ~~any Borrower and/or~~ Operating Lessee of any ~~material~~ default by ~~the franchisee~~ Operating Lessee in the performance or observance of any of the material terms, covenants or conditions of any Franchise Agreement on the part of ~~the franchisee thereunder~~ Operating Lessee 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~~ plan and ~~any other items reasonably requested by Lender, in each case~~ estimate received by ~~any Borrower or Operating Lessee~~ it under any Franchise Agreement~~. (b) No Borrower shall (and shall not cause or permit any~~ . Operating Lessee ~~to)~~shall not, without the prior consent of ~~the~~ Lender (which consent shall not be unreasonably withheld), conditioned or delayed, 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; provided, however, that immaterial modifications or amendment, changes or supplements of any Franchise Agreement may be made without consent of Lender. Operating Lessee and Borrower each ~~Borrower~~ hereby ~~assigns~~ assign to Lender as further security for the payment of the ~~Indebtedness~~ Debt and for the performance and observance of the terms, covenants and conditions of this ~~Loan~~ Agreement, ~~any and~~ all the rights, privileges and prerogatives of ~~each Borrower~~ either to surrender ~~any~~ the Franchise ~~Agreement~~ Agreements or to terminate, cancel, materially modify, change, supplement, alter or amend ~~any~~ the Franchise ~~Agreement~~ Agreements in any ~~respect~~respect except as otherwise permitted in this Agreement, and any such surrender of any Franchise Agreement or termination, cancellation, material 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 (other than as permitted pursuant to this Agreement) and of no force and effect~~. (c)~~ . If ~~any franchisee~~ Operating Lessee or Borrower 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~~ Operating Lessee to be performed or observed, if such default is not remedied within the lesser of (i) five (5) days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower and/or Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing ~~any~~ Borrower or Operating Lessee 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~~ the Franchise Agreement on the part of ~~the franchisee~~ Operating Lessee 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~~ Person designated by Lender shall have, and are hereby granted, the right to enter upon the ~~applicable Individual Property~~ Properties at any time and from time to time for the purpose of taking any such action. If ~~any~~ a Franchisor shall deliver to Lender a copy of any notice sent to ~~any Borrower and/or~~ Operating Lessee or Borrower of ~~any~~ default under ~~any~~ a 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~~ . Operating Lessee shall, from time to time, use commercially reasonable efforts to obtain from each Franchisor and deliver to Lender and Mezzanine Lender such certificates of estoppel with respect to compliance by Operating Lessee with the terms of the applicable Franchise Agreement as may be reasonably requested by Lender provided, that, so long as no Event of Default has occurred and is continuing, Operating Lessee toshall not be required to provide such statement more than one (1) ~~exercise each individual option~~time in any Fiscal Year, ~~if any~~provided, further, that such estoppel shall be addressed to ~~extend or renew the term of each Franchise Agreement upon demand by~~ both 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) Mezzanine Lender. Any sums expended by Lender pursuant to this ~~Section~~ paragraph 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~~Debt, shall be secured by the lien of the ~~Mortgage~~ Security Instruments and the other Loan Documents and shall be immediately due and payable ~~within two (2) Business Days after~~ upon demand by Lender therefor. . Notwithstanding the foregoing, Operating Lessee shall have the right, without Lender’s consent (~~f) Each Borrower shall~~except with respect to any Lender consent required pursuant to the definitions of Qualified Franchisor and Replacement Franchise Agreement set forth herein), ~~promptly upon request of Lender, but no more than two (2) times in~~ to replace Franchisor and terminate the related Franchise Agreement provided that the replacement franchisor is a Qualified Franchisor pursuant to a Replacement Franchise Agreement and any ~~calendar year during~~ termination fees and other sums payable to the ~~term of the Loan (unless~~ Franchisor being replaced are either (i) ~~an Event~~ paid from Excess Cash Flow which is entitled to be used for such payment in accordance with the terms and conditions of ~~Default has occurred and is continuing~~ this Agreement or (ii) ~~such request~~ paid from an equity contribution to the Operating Lessee from sources other than the Collateral. (b) At all times when Operating Lessee is ~~occasioned in connection with a Secondary Market Transaction) use its diligent best efforts~~ the party entitled to ~~obtain~~ the benefits of (and ~~deliver (or cause to be delivered) an estoppel certificate from each Franchisor stating that (i~~is primarily responsible for the performance of the obligations under) 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~~ to comply with the terms of this Section 5.1.30 with respect to such Franchise Agreement. In the event that Borrower is a ~~new~~ party to any Franchise Agreement (or obligated under any related agreement), Borrower shall comply with all obligations of Operating Lessee under this Section 5.1.30 with respect to such Franchise Agreement as if Borrower were Operating Lessee. Additionally, Borrower shall perform any and all obligations of Borrower under the Franchise Agreement in the same manner as required of Operating Lessee under this Section 5.1.30 and each of Borrower and Operating Lessee shall cause any other Borrower Affiliate which is a ~~replacement Franchisor~~party to any Franchise Agreement to so perform its obligations under the applicable Franchise Agreement. (c) In the event a New LLC Borrower acquires an Individual Property pursuant to Section 5.2.10(i) and Operating Lessee and Borrower terminate the Operating Lease with respect to such Individual Property in accordance with the terms of this Agreement, ~~which shall deliver a comfort or similar letter to~~ Operating Lessee will assign and ~~in favor of Lender, all upon terms and conditions reasonably acceptable to Lender~~New LLC Borrower will assume the Franchise Agreement for such Individual Property.

Appears in 1 contract

Samples: Loan Agreement (BRE Select Hotels Corp)

Franchise Agreements. (a) Each ~~Non-Marriott~~ Borrowing Base Property shall be operated under the terms and conditions of the applicable Franchise ~~Agreement in all material respects. Each Borrower shall or~~ Agreement, if any, and each Loan Party shall, and shall cause ~~the applicable~~ each Affiliate Operating Lessee to to, (i) pay all sums required to be paid by ~~the franchisee~~ Operating Lessees under each ~~Franchise Agreement~~Xxxxxxxxx Xxxxxxxxx, (iixx) diligently perform, ~~observe~~ observe, and enforce all of the terms, ~~covenants~~ covenants, and conditions of each Franchise Agreement on the part of ~~the franchisee thereunder~~ an Operating Lessee to be performed, ~~observed~~ observed, and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of ~~said franchisee~~ each Operating Lessee under each Franchise ~~Agreement~~Agreement except to the extent the foregoing could not reasonably be expected to cause a Material Property Event, (iii) promptly notify ~~Lender~~ Administrative Agent of the giving of any notice to ~~any Borrower and/or~~ an Operating Lessee of any ~~material~~ default by ~~the franchisee~~ such Operating Lessee in the performance or observance of any of the terms, ~~covenants~~ covenants, or conditions of any Franchise Agreement on the part of ~~the franchisee thereunder~~ any Operating Lessee to be performed and observed and deliver to ~~Lender~~ Administrative Agent a true copy of each such notice, and (iv) promptly deliver to ~~Lender~~ Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, ~~notice of a material default under the Franchise Agreement~~notice, ~~report regarding operations at the related Individual Property~~report, ~~estimates of any monetary nature~~ and ~~any other items reasonably requested by Lender, in each case~~ estimate received by ~~any Borrower or Operating Lessee~~ it under any Franchise Agreement. (b) No ~~Borrower~~ Loan Party shall, nor shall ~~(and shall not cause or~~ it permit any Operating Lessee to), without the prior consent of ~~the Lender (which consent shall not be unreasonably withheld)~~Administrative Agent, 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~~ an Operating Lessee shall default in the performance or observance of any material term, ~~covenant~~ 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~~ Loan Parties from any of ~~its~~ their obligations hereunder, ~~Lender~~ Administrative Agent 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~~ covenants, and conditions of such Franchise Agreement on the part of ~~the franchisee~~ such Operating Lessee to be performed or observed to be promptly performed or observed on behalf of such ~~Borrower~~Operating Lessee, to the end that the rights of ~~said franchisee (and/or~~ such ~~Borrower and/or~~ Operating ~~Lessee)~~ Lessee in, to 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 Administrative Agent and any person designated by ~~Lender~~ Administrative Agent shall have, and are hereby granted, the right to enter upon the applicable ~~Individual~~ Borrowing Base Property at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to ~~Lender~~ Administrative Agent a copy of any notice sent to ~~any Borrower and/or~~ an Operating Lessee of ~~any~~ default under any applicable Franchise Agreement, such notice shall constitute full protection to ~~Lender~~ Administrative Agent for any action taken or omitted to be taken by ~~Lender~~ Administrative Agent 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~~ Administrative Agent pursuant to this Section 7.18 shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to ~~Lender~~Administrative Agent, shall be deemed to constitute a portion of the ~~Indebtedness~~Obligations, shall be secured by the ~~lien~~ Lien of the ~~Mortgage~~ Mortgages and the other Loan Documents and shall be immediately due and payable ~~within two (2) Business Days after~~ upon demand by ~~Lender~~ Administrative Agent therefor. (fe) Each ~~Borrower~~ Loan Party shall, promptly upon request of ~~Lender,~~ Administrative Agent (but no not more often than ~~two~~ one (21) ~~times~~ time in any ~~calendar year during the term~~ period of ~~the Loan~~ twelve (~~unless (i~~12) consecutive months absent an Event of ~~Default has occurred and is continuing or (ii) such request is occasioned in connection with a Secondary Market Transaction)~~ Default), use ~~its~~ diligent ~~best~~ good faith 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~~ amended, or assigned, (ii) neither such Franchisor nor ~~the franchisee named thereunder~~ any Operating Lessee is in default under any of the terms, ~~covenants~~ 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~~ any Operating Lessee has commenced any action or given or received any notice for the purpose of terminating any applicable Franchise ~~Agreement~~ Agreement, and (iv) all sums due and payable to such Franchisor under each applicable Franchise Agreement have been paid in full. (f) In the event that any Management Agreement also serves as a franchise agreement or contains provisions typically contained in franchise agreements, then the provisions of this Section 7.18 shall apply to such Management Agreement. (g) ~~Upon~~ In the ~~termination of~~ event that any ~~Franchise Agreement, each Borrower shall (or shall cause Operating Lessee to) promptly enter into~~ Borrowing Base Property is at any time operated under a ~~new~~ Franchise Agreement ~~with~~ that is not effective as of the Closing Date (including a ~~replacement Franchisor~~springing Franchise Agreement which is in place but not effective as of the Closing Date), ~~which~~ then the Franchisor party to such Franchise Agreement shall deliver a such estoppel letters, comfort letters, consents, or ~~similar letter to and in favor of Lender, all upon terms and conditions~~ other conforming agreements as Administrative Agent may reasonably ~~acceptable to Lender~~request.

Appears in 1 contract

Samples: Credit Agreement (Capital Lodging)

Franchise Agreements. ~~(a) Each Non-Marriott Property shall be operated under the terms~~ In addition to, and ~~conditions~~ not in lieu 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~~ Franchisor and the obligations of Master Franchisee under ~~each~~ this Section, if Master Franchisee terminates this Agreement without cause or Franchisor terminates this Agreement in accordance with its terms, Master Franchisee agrees to novate to Franchisor or its designee, at the option of Franchisor, all of its rights and obligations under those Area Representative Agreements or Unit Franchise ~~Agreement,~~ Agreements designated by Franchisor. Franchisor shall give Master Franchisee written notice of its exercise of this option within sixty (~~iii~~60) ~~promptly notify Lender~~ days of the ~~giving~~ effective date 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 termination of this Agreement. If Franchisor exercises the option provided for in this Subsection B, ~~and without waiving or releasing any Borrower from any of its obligations hereunder, Lender~~ it 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 from the date of the notice exercising such option to designate the Franchise Agreements to be novated and prepare for closing of this termination. The Franchise Agreements transferred, as designated by Franchisor, shall be novated to Franchisor without cost or charge and free and clear of any liens, charges and encumbrances. Neither Franchisor nor its designee shall under any circumstances assume or be liable for any obligation for performance or obligation or liability for default or non-performance of Master Franchisee under the particular Franchise Agreement or this Agreement (or on any other basis) that arose prior to the ~~last day upon which any such option may be exercised~~effective date of the novation. Therefore, Master Franchisee and ~~each Borrower hereby expressly authorizes and appoints Lender as~~ its ~~attorney-in-fact to exercise (or cause the applicable Operating Lessee to exercise~~Owner(s) ~~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~~ liable for any obligation for performance or obligation or liability for default or non-performance under any Franchise Agreement of Franchisor or its designee that arises before and ~~shall be deemed to be coupled with an interest. (e) Any sums expended by Lender pursuant to this Section shall bear interest at~~ after the ~~Default Rate from the date such cost is incurred to the~~ effective date of ~~payment~~ novation. If Franchisor does not exercise its novation option with respect to ~~Lender~~one or more Franchise Agreements, Master Franchisee shall ~~be deemed~~ cause Area Representative Franchisee and/or Unit Franchisees whose Area Representative Agreement or Unit Franchise Agreement are not novated to ~~constitute a portion~~ Franchisor to cease all use of the ~~Indebtedness, shall be secured by the lien of the Mortgage~~ Marks and the ~~other Loan Documents and shall be immediately due and payable within two (2) Business Days after demand by Lender therefor~~System as provided in Subsection A of this Section. (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.

Appears in 1 contract

Samples: Master Franchise Agreement (Planet Beach Franchising Corp)

Franchise Agreements. (a) ~~Each Non-Marriott Property~~ Subject to the terms of Section 5.24, Borrower shall cause any Mortgage Loan Borrower and Maryland Owner that is party to a Franchise Agreement to (i) promptly perform and observe all of the covenants required to be ~~operated~~ performed and observed by it under the ~~terms and conditions of the applicable~~ related 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~~ respects 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (~~iii~~ii) 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~~ under 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~~ which it is aware; (iviii) promptly deliver to Lender a copy of ~~each financial statement, business plan, capital expenditure plan,~~ any notice of a default or other material ~~default~~ notice received by such Mortgage Loan Borrower or Maryland Owner or delivered by such Mortgage Loan Borrower or Maryland Owner under the related Franchise Agreement; (iv) promptly give notice to Lender of any notice or information that such Mortgage Loan Borrower or Maryland Owner receives which indicates that Franchisor is terminating any Franchise Agreement; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Franchisor under the related Franchise Agreement, ~~report regarding operations~~ including causing each Individual Property that is subject to a Franchise Agreement to be operated, maintained and managed at all times and in a manner consistent with the standards for the operation, management and maintenance set forth in 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 Except as permitted in Section 5.24, Borrower shall (not, and shall not ~~cause or~~ permit any ~~Operating Lessee~~ Mortgage Loan Borrower or Maryland Owner 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 written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) ~~shall be void and~~ surrender, terminate or cancel a Franchise Agreement to which it is a party or otherwise replace a Franchisor or enter into any other Franchise Agreement with respect to any Individual Property; (ii) reduce or consent to the reduction of ~~no force and effect.~~ the term of a Franchise Agreement to which it is a party; (ciii) ~~If any franchisee shall default in~~ increase or consent to the ~~performance or observance~~ increase of the amount of any ~~material term, covenant or condition of any~~ charges under a 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, which it is a party; (iv) to the ~~end that~~ extent it has the ~~rights of said franchisee (and/or such Borrower and/or Operating Lessee) in,~~ right to ~~and under such Franchise Agreement shall be kept unimpaired and free from default. Any such amounts~~ do 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 pursuant to the terms of the applicable ~~Subordination Attornment and Security Agreement and/or Assignment of Management~~ Franchise Agreement, permit the applicable Franchisor to assign or encumber its right or interest in the Franchise Agreement to which it is a party; or (v) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Franchise Agreement to which it is a party. (c) Borrower shall not, and shall not permit any Mortgage Loan Borrower or Maryland Owner to, pledge, transfer, assign, mortgage, encumber or allow to be encumbered its respective interest in the Franchise Agreement or any interest therein except as provided in the Mortgage Loan Documents to Mortgage Loan Lender and ~~any person designated by Lender shall have~~except as provided in the Other Mezzanine Loan Documents to the Other Mezzanine Loan Lenders. Without limiting the foregoing, ~~and are hereby granted,~~ to the extent it has the right to ~~enter upon~~ do so pursuant to the terms of 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, Borrower shall not, and shall not permit any Mortgage Loan Borrower or Maryland Owner to, consent to any assignment by a Franchisor of such ~~notice shall constitute full protection to Lender for any action taken~~ Franchisor’s interest in the Franchise Agreement or ~~omitted to be taken by Lender in good faith, in reliance thereon~~its right and interests thereunder. (d) ~~Each~~ In the event that Borrower ~~shall (~~causes any Mortgage Loan Borrower or ~~shall cause the applicable Operating Lessee to) exercise each individual option, if any,~~ Maryland Owner to ~~extend or renew the term of each Franchise Agreement upon demand by Lender made~~ replace a Franchisor 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~~ pursuant to this Section 5.23 and Section 5.24, the replacement Franchisor must be a Qualified Franchisor and the requirements of ~~Default has occurred and is continuing or (ii)~~ Section 5.24 must be satisfied with respect to 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 Qualified Franchisor’s replacement 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.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Franchise Agreements. (a) ~~Each Non-Marriott Property~~ Subject to the terms of Section 5.24, Borrower shall cause any Mortgage Loan Borrower and Maryland Owner that is party to a Franchise Agreement to (i) promptly perform and observe all of the covenants required to be ~~operated~~ performed and observed by it under the ~~terms and conditions of the applicable~~ related 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~~ respects 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (~~iii~~ii) 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~~ under 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~~ which it is aware; (iviii) promptly deliver to Lender a copy of ~~each financial statement, business plan, capital expenditure plan,~~ any notice of a default or other material ~~default~~ notice received by such Mortgage Loan Borrower or Maryland Owner or delivered by such Mortgage Loan Borrower or Maryland Owner under the related Franchise Agreement; (iv) promptly give notice to Lender of any notice or information that such Mortgage Loan Borrower, Maryland Owner or any Senior Mezzanine Borrower receives which indicates that Franchisor is terminating any Franchise Agreement; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Franchisor under the related Franchise Agreement, ~~report regarding operations~~ including causing each Individual Property that is subject to a Franchise Agreement to be operated, maintained and managed at all times and in a manner consistent with the standards for the operation, management and maintenance set forth in 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 Except as permitted in Section 5.24, Borrower shall (not, and shall not ~~cause or~~ permit any ~~Operating Lessee~~ Mortgage Loan Borrower or Maryland Owner 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 written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) ~~shall be void and~~ surrender, terminate or cancel a Franchise Agreement to which it is a party or otherwise replace a Franchisor or enter into any other Franchise Agreement with respect to any Individual Property; (ii) reduce or consent to the reduction of ~~no force and effect.~~ the term of a Franchise Agreement to which it is a party; (ciii) ~~If any franchisee shall default in~~ increase or consent to the ~~performance or observance~~ increase of the amount of any ~~material term, covenant or condition of any~~ charges under a 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, which it is a party; (iv) to the ~~end that~~ extent it has the ~~rights of said franchisee (and/or such Borrower and/or Operating Lessee) in,~~ right to ~~and under such Franchise Agreement shall be kept unimpaired and free from default. Any such amounts~~ do 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 pursuant to the terms of the applicable ~~Subordination Attornment and Security Agreement and/or Assignment of Management~~ Franchise Agreement, permit the applicable Franchisor to assign or encumber its right or interest in the Franchise Agreement to which it is a party; or (v) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Franchise Agreement to which it is a party. (c) Borrower shall not, and shall not permit any Mortgage Loan Borrower or Maryland Owner to, pledge, transfer, assign, mortgage, encumber or allow to be encumbered its respective interest in the Franchise Agreement or any interest therein except as provided in the Mortgage Loan Documents to Mortgage Loan Lender and ~~any person designated by Lender shall have~~except as provided in the Other Mezzanine Loan Documents to the Other Mezzanine Loan Lenders. Without limiting the foregoing, ~~and are hereby granted,~~ to the extent it has the right to ~~enter upon~~ do so pursuant to the terms of 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, Borrower shall not, and shall not permit any Mortgage Loan Borrower or Maryland Owner to, consent to any assignment by a Franchisor of such ~~notice shall constitute full protection to Lender for any action taken~~ Franchisor’s interest in the Franchise Agreement or ~~omitted to be taken by Lender in good faith, in reliance thereon~~its right and interests thereunder. (d) ~~Each~~ In the event that Borrower ~~shall (~~causes any Mortgage Loan Borrower or ~~shall cause the applicable Operating Lessee to) exercise each individual option, if any,~~ Maryland Owner to ~~extend or renew the term of each Franchise Agreement upon demand by Lender made~~ replace a Franchisor 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~~ pursuant to this Section 5.23 and Section 5.24, the replacement Franchisor must be a Qualified Franchisor and the requirements of ~~Default has occurred and is continuing or (ii)~~ Section 5.24 must be satisfied with respect to 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 Qualified Franchisor’s replacement 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.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Franchise Agreements. (a) Each ~~Non-Marriott~~ Borrowing Base Property shall be operated under the terms and conditions of the applicable Franchise ~~Agreement in all material respects. Each Borrower shall or~~ Agreement, if any, and each Loan Party shall, and shall cause ~~the applicable~~ each Affiliate Operating Lessee to to, (i) pay all sums required to be paid by ~~the franchisee~~ Operating Lessees under each Franchise Agreement, (ii) diligently perform, ~~observe~~ observe, and enforce all of the terms, ~~covenants~~ covenants, and conditions of each Franchise Agreement on the part of ~~the franchisee thereunder~~ an Operating Lessee to be performed, ~~observed~~ observed, and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of ~~said franchisee~~ each Operating Lessee under each Franchise ~~Agreement~~Agreement except to the extent the foregoing could not reasonably be expected to cause a Material Property Event, (iii) maintain in all material respects the standards required by the applicable Franchisor with respect to FF&E and other capital improvements except to the extent that failure could not reasonably be expected to cause a Material Property Event, (iv) promptly notify ~~Lender~~ Administrative Agent of the giving of any notice to ~~any Borrower and/or~~ an Operating Lessee of any ~~material~~ default by ~~the franchisee~~ such Operating Lessee in the performance or observance of any of the terms, ~~covenants~~ covenants, or conditions of any Franchise Agreement on the part of ~~the franchisee thereunder~~ any Operating Lessee to be performed and observed and deliver to ~~Lender~~ Administrative Agent a true copy of each such notice, and (ivv) promptly deliver to ~~Lender~~ Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, ~~notice of a material default under the Franchise Agreement~~notice, ~~report regarding operations at the related Individual Property~~report, ~~estimates of any monetary nature~~ and ~~any other items reasonably requested by Lender, in each case~~ estimate received by ~~any Borrower or Operating Lessee~~ it under any Franchise Agreement. (b) No ~~Borrower~~ Loan Party shall, nor shall ~~(and shall not cause or~~ it permit any Operating Lessee to), without the prior consent of ~~the Lender (which consent shall not be unreasonably withheld)~~Administrative Agent, 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~~ an Operating Lessee shall default in the performance or observance of any material term, ~~covenant~~ 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~~ Loan Parties from any of ~~its~~ their obligations hereunder, ~~Lender~~ Administrative Agent 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~~ covenants, and conditions of such Franchise Agreement on the part of ~~the franchisee~~ such Operating Lessee to be performed or observed to be promptly performed or observed on behalf of such ~~Borrower~~Operating Lessee, to the end that the rights of ~~said franchisee (and/or~~ such ~~Borrower and/or~~ Operating ~~Lessee)~~ Lessee in, to 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 Administrative Agent and any person designated by ~~Lender~~ Administrative Agent shall have, and are hereby granted, the right to enter upon the applicable ~~Individual~~ Borrowing Base Property at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to ~~Lender~~ Administrative Agent a copy of any notice sent to ~~any Borrower and/or~~ an Operating Lessee of ~~any~~ default under any applicable Franchise Agreement, such notice shall constitute full protection to ~~Lender~~ Administrative Agent for any action taken or omitted to be taken by ~~Lender~~ Administrative Agent 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~~ Administrative Agent pursuant to this Section 7.18 shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to ~~Lender~~Administrative Agent, shall be deemed to constitute a portion of the ~~Indebtedness~~Obligations, shall be secured by the ~~lien~~ Lien of the ~~Mortgage~~ Mortgages and the other Loan Documents and shall be immediately due and payable ~~within two (2) Business Days after~~ upon demand by ~~Lender~~ Administrative Agent therefor. (fe) Each ~~Borrower~~ Loan Party shall, promptly upon request of ~~Lender~~Administrative Agent, 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~~ good faith 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~~ amended, or assigned, (ii) neither such Franchisor nor ~~the franchisee named thereunder~~ any Operating Lessee is in default under any of the terms, ~~covenants~~ 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~~ any Operating Lessee has commenced any action or given or received any notice for the purpose of terminating any applicable Franchise ~~Agreement~~ Agreement, and (iv) all sums due and payable to such Franchisor under each applicable Franchise Agreement have been paid in full. (f) In the event that any Management Agreement also serves as a franchise agreement or contains provisions typically contained in franchise agreements, then the provisions of this Section 7.18 shall apply to such Management Agreement. (g) ~~Upon~~ In the ~~termination of~~ event that any ~~Franchise Agreement, each Borrower shall (or shall cause Operating Lessee to) promptly enter into~~ Borrowing Base Property is at any time operated under a ~~new~~ Franchise Agreement ~~with~~ that is not effective as of the Closing Date (including a ~~replacement Franchisor~~springing Franchise Agreement which is in place but not effective as of the Closing Date), ~~which~~ then the Franchisor party to such Franchise Agreement shall deliver a such estoppel letters, comfort letters, consents, or ~~similar letter to and in favor of Lender, all upon terms and conditions~~ other conforming agreements as Administrative Agent may reasonably ~~acceptable to Lender~~request.

Appears in 1 contract

Samples: Credit Agreement (CNL Hotels & Resorts, Inc.)

Franchise Agreements. Each Borrower shall (ai) ~~Each Non-Marriott Property shall~~ cause the hotels located on its Properties to be operated pursuant to the applicable Franchise Agreement; (ii) promptly perform and observe all of the covenants required to be performed and observed by it 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (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~~ under 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~~ which it is aware; (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital ~~expenditure~~ expenditures plan, ~~notice of a material default~~ notice, report and estimate received by it under the Franchise ~~Agreement~~Agreements; and (v) promptly enforce in accordance with commercially reasonable practices the performance and observance of all of the material covenants required to be performed and observed by the franchisor under the Franchise Agreements. Without Lender's prior consent, 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 no Borrower shall (~~and shall not cause or permit any Operating Lessee to)~~i) surrender, ~~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~~ Agreement; (ii) reduce or consent to the reduction of the term of any Franchise Agreement; (iii) increase or consent to the increase of the amount of any charges under any Franchise Agreement; (iv) otherwise modify, change, supplement, alter or ~~amend~~ amend, or waive or release any ~~Franchise Agreement~~of its rights and remedies under, 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~~ (v) suffer or ~~amend~~ permit the occurrence of continuance a default beyond any applicable cure period under any Franchise Agreement in (or any ~~respect, and any~~ successor franchise agreement) if such ~~surrender of any Franchise Agreement~~ default permits the franchisor to terminate 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 cancel 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 interestsuccessor franchise agreement). (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.

Appears in 1 contract

Samples: Loan Agreement (Lodgian Inc)

Franchise Agreements. Each Borrower shall (ai) ~~Each Non-Marriott Property shall~~ cause the hotels located on its Properties to be operated pursuant to the applicable Franchise Agreement; (ii) promptly perform and observe all of the covenants required to be performed and observed by it 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (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~~ under 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~~ which it is aware; (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital ~~expenditure~~ expenditures plan, ~~notice of a material default~~ notice, report and estimate received by it under the Franchise ~~Agreement~~Agreements; and (v) promptly enforce in accordance with commercially reasonable practices the performance and observance of all of the material covenants required to be performed and observed by the franchisor under the Franchise Agreements. Without Lender's prior consent, 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 no Borrower shall (~~and shall not cause or permit any Operating Lessee to)~~i) surrender, ~~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~~ Agreement; (ii) reduce or consent to the reduction of the term of any Franchise Agreement; (iii) increase or consent to the increase of the amount of any charges under any Franchise Agreement; (iv) otherwise modify, change, supplement, alter or ~~amend~~ amend, or waive or release any ~~Franchise Agreement~~of its rights and remedies under, 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~~ (v) suffer or ~~amend~~ permit the occurrence of continuance a default beyond any applicable cure period under any Franchise Agreement in (or any ~~respect, and any~~ successor franchise agreement) if such ~~surrender of any~~ default permits the franchisor to terminate or cancel such Franchise Agreement (or ~~termination~~any successor franchise agreement). Notwithstanding anything to the contrary in this Section 5.31, 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 Borrowers shall have the ~~right~~right to surrender, ~~but shall be under no obligation, to pay any sums and to perform any act~~ terminate or ~~take any action as may be appropriate to cause all the terms, covenants and conditions of such Franchise Agreement on the part~~ cancel one or more of the ~~franchisee to be performed or observed to be promptly performed or observed on behalf of such Borrower,~~ Franchise Agreements with respect to the ~~end~~ applicable Property or Properties provided that ~~the rights of said franchisee~~ (~~and/or such Borrower and/or Operating Lessee~~a) 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~~ an Approved Franchisor which new agreement shall be on such Approved Franchisor's then-current standard for or otherwise reasonably satisfactory to Lender and (B) such new agreement shall become effective immediately upon the expiration of Franchise Agreement which is being replaced and (C) Borrowers shall provide Lender with security to ensure the payment of any cancellation, termination or any other fees or costs fees payable in connection with the Franchise Agreement which is being replaced, together with any fees, expenses or costs (including PIP costs) incurred or payable in connection with the entry into the new Franchise Agreement, which security shall ~~deliver a comfort or similar letter to and in favor~~ not be less than 125% of Lender's reasonable estimate of all such fees, ~~all upon terms and conditions reasonably acceptable to Lender~~expenses or costs.

Appears in 1 contract

Samples: Loan Agreement (Humphrey Hospitality Trust Inc)

Franchise Agreements. (ai) ~~Each Non-Marriott Property shall be operated under the terms and conditions of the applicable Franchise Agreement~~ Borrower shalt: (A) perform and/or observe, 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 agreements required to be performed and observed by it under the Franchise Agreements and ~~deliver~~ do all things necessary to ~~Lender a true copy~~ preserve and to keep unimpaired its material rights thereunder at the time set forth therein, including any applicable cure periods; (B) promptly notify Administrative Agent of ~~each such notice, and~~ any material default under the Franchise Agreements of which it is aware; (ivC) promptly deliver to ~~Lender~~ Administrative Agent a copy of each material financial statement, business plan, capital ~~expenditure~~ expenditures plan, ~~notice of a material default~~ notice, report and estimate received by it under the Franchise ~~Agreement~~Agreements, 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)including, without ~~the prior consent of the Lender~~ limitation, any notice that Borrower is required to undertake any capital improvements or replace any FF&E; and (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 D) enforce the performance and observance of all of the ~~terms,~~ material covenants and ~~conditions~~ agreements required to be performed and/or observed by Manager under the Franchise Agreements, in a commercially reasonable manner. In the event that any Franchise Agreement expires or is terminated (without limiting any obligation of Borrower, if any, to obtain Administrative Agent’s consent to any termination prior to the expiration of the applicable term or modification of the Franchise Agreements in accordance with the terms and provisions of this ~~Loan~~ Agreement), ~~any and all rights~~Borrower shall promptly enter into a Replacement Franchise Agreement with Franchisor or another Qualified Franchisor, ~~privileges and prerogatives of each~~ as applicable. (ii) If Borrower ~~to surrender~~ shall be in default under any Franchise Agreement or ~~to terminate, cancel, modify, change, supplement, alter or amend~~ any Replacement Franchise Agreement ~~in any respect,~~ entered into by Borrower pursuant to the terms and ~~any such surrender of any~~ conditions hereof which could reasonably be expected to allow Franchisor to terminate the Franchise Agreement (without regard as to whether any applicable notice 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 observedcure periods have expired thereunder), 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~~under the Loan Documents, ~~Lender~~ but subject to the terms of any comfort letter, tri-party agreement or similar agreement then in effect and to which Administrative Agent is a party, Administrative Agent 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~~ the Franchise Agreement on the part of ~~the franchisee~~ Borrower 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 defaultobserved. 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 Administrative Agent and any ~~person~~ Person designated by ~~Lender~~ Administrative Agent 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~~ the Franchisor shall deliver to ~~Lender~~ Administrative Agent a copy of any notice sent to ~~any~~ Borrower ~~and/or Operating Lessee of any~~ concerning a default under ~~any~~ a Franchise Agreement, such notice shall constitute full protection to ~~Lender~~ Administrative Agent and its designees for any action taken or omitted to be taken ~~by Lender~~ thereby 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~~ Administrative Agent pursuant to this Section 5.1.18 shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to ~~Lender~~Administrative Agent, shall be deemed to constitute a portion of the ~~Indebtedness~~Debt, shall be secured by the lien of the ~~Mortgage~~ Security Instrument and the other Loan ~~Documents~~ Documents, and shall be immediately due and payable ~~within two (2) Business Days after~~ upon demand by ~~Lender~~ Administrative Agent therefor. (fiii) ~~Each~~ Borrower ~~shall,~~ shall promptly upon written request of ~~Lender,~~ Administrative Agent (but no not more than ~~two (2) times~~ once in any ~~calendar year during the term of the Loan~~ twelve (12) month period, unless ~~(i)~~ an Event of Default ~~has occurred and is continuing or (ii) such request is occasioned~~ exists, in ~~connection with a Secondary Market Transaction)~~ which case the foregoing limitation shall not apply), use ~~its diligent best~~ commercially reasonable efforts to obtain ~~and deliver (or cause to be delivered)~~ an estoppel certificate from each Franchisor stating that (iA) ~~each~~ the applicable Franchise Agreement is in full force and effect and has not been modified, amended or assigned, (iiB) neither ~~such~~ the Franchisor thereunder nor ~~the franchisee named thereunder~~ Borrower is in default under any of the terms, covenants or provisions of ~~each applicable~~ the 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~~ the Franchise Agreement, (~~iii~~C) neither such Franchisor nor ~~the franchisee thereunder~~ Borrower has commenced any action or given or received any notice for the purpose of terminating ~~any applicable~~ the Franchise ~~Agreement~~ Agreement, and (ivD) all sums due and payable to such Franchisor under ~~each applicable~~ the Franchise ~~Agreement~~ Agreement, have been paid in full. (giv) ~~Upon~~ Subject to the ~~termination~~ terms of any ~~Franchise Agreement~~applicable comfort letter, ~~each Borrower~~ tri-party agreement or similar agreement then in effect to which Administrative Agent is a party, if (A) Franchisor shall become the subject of a Bankruptcy Action, or (~~or shall cause Operating Lessee to~~B) ~~promptly enter into~~ a ~~new~~ default occurs under the Franchise Agreement on the part of the Franchisor, after the expiration of any applicable notice and/or cure period Borrower shall, at the request of Administrative Agent, but subject to the limitations and restrictions of any Bankruptcy Action and the rights of any Franchisor under any Franchise Agreement to arbitrate or mediate a default, terminate the Franchise Agreement and replace the Franchisor with a ~~replacement Franchisor, which shall deliver~~ Qualified Franchisor pursuant to a ~~comfort or similar letter to and in favor of Lender, all upon terms and conditions~~ Replacement Franchise Agreement reasonably ~~acceptable to Lender~~approved by Administrative Agent.

Appears in 1 contract

Samples: Loan Agreement (Nexpoint Diversified Real Estate Trust)

Franchise Agreements. (ai) ~~Each Non-Marriott Property~~ Subject to the terms and conditions set forth herein, the IH Manager and the Lessee for each Hotel shall exercise their good faith commercially reasonable efforts, with respect to each Franchise Agreement and at the option of the REIT, to either (1) assist the applicable TRS Lessee and the Lessor in obtaining a replacement franchise agreement of the same brand for the balance of the term of the current applicable Franchise Agreement in favor of the applicable TRS Lessee or (2) obtain assignments of such Franchise Agreements in favor of the applicable TRS Lessee, consented to in writing by the applicable franchisor, for the balance of the term of the current Franchise Agreement, in each case, effective as of the Lease Assignment Time (or such other date and time as may be ~~operated under~~ requested by the REIT), including, without limitation, executing any assignment or termination agreements or other documents reasonably required by the franchisors to effect such assignment or termination and which are not inconsistent with the terms and conditions of this Agreement. (ii) Notwithstanding Section 2(b)(i) above, if the REIT determines, in its sole discretion, that the terms and conditions with respect to the issuance of a particular replacement Franchise Agreement or the assignment of a particular Franchise Agreement, including, without limitation, a franchisor’s Product Improvement Plan (“PIP”), new franchise terms and conditions or change of ownership terms or conditions or costs related to any of the foregoing, are unreasonable or unacceptable, the REIT may elect to so notify the applicable Lessee of such determination, in which event, at the direction of the REIT, (1) the Hotel subject thereto may be excluded from the applicable Closing or (2) such Hotel may be included in the applicable Closing and the Lessee shall maintain the Franchise Agreement for that Hotel, subject to the right of the REIT or the TRS Lessees subsequent to the Assignment Date to require the Lessee and the IH Manager to use their good faith commercially reasonable efforts to transfer the franchise license and assign the applicable Franchise Agreement ~~in all material respects. Each Borrower shall or shall cause~~ to the applicable ~~Operating~~ TRS Lessee or a designee thereof at any time upon reasonable notice from the REIT, but subject to ~~(i) pay all sums required to be paid by the franchisee under each Franchise Agreement~~franchisor consent, ~~(ii) diligently perform, observe and enforce all of the terms, covenants~~ upon terms and conditions of ~~each~~ assignment acceptable to the REIT and the Lessee. In the event that such Hotel is so included in the applicable Closing, the TRS Lessee shall pay the applicable franchise fees under such Franchise Agreement on and the ~~part of~~ TRS Lessee, the ~~franchisee thereunder to be performed, observed~~ Lessee and ~~enforced to~~ IH Manager shall cooperate and enter into such reasonable arrangements as between themselves and 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 TRS 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 necessary or appropriate to ~~cause all~~ provide the ~~terms~~benefits, ~~covenants and conditions~~ subject to the detriments, of such Franchise Agreement on to the ~~part~~ TRS Lessee with respect to the applicable Hotel to the same extent as that possessed by the current Lessee. (iii) Except with respect to any Franchise Agreement(s) maintained by the Lessees after the applicable Assignment Date pursuant to Section 2(b)(ii) hereof, the parties shall exercise their good faith commercially reasonable efforts to obtain from each franchisor a release of the ~~franchisee~~ applicable Lessee from all liabilities arising under each Franchise Agreement or any other related agreement, in each case, for periods and related liabilities from and after the Lease Assignment Time, and the parties shall execute and deliver all documents reasonably required by franchisors in connection therewith (other than indemnity agreements) and which are reasonable for the applicable Lessee to ~~be performed or observed to be promptly performed or observed on behalf of such Borrower~~execute; provided, ~~to the end~~ however, it is understood and agreed that the ~~rights of said franchisee (and/or~~ failure to obtain such ~~Borrower and/or Operating Lessee) in,~~ a release shall not be a condition to ~~and~~ close the transaction contemplated by this Agreement; provided further that in obtaining such releases the REIT Parties shall have no obligation to incur any liability under or with respect to such Franchise Agreement other than for periods from and after the Lease Assignment Time for which the applicable TRS Lessee is the franchisee thereunder, and the Lessees shall ~~be kept unimpaired and free from default. Any~~ have no obligation to incur any liability under or with respect to 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 Franchise Agreement other than for periods prior to the ~~terms of~~ Lease Assignment Time for which 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,~~ Lessee was 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 thereonfranchisee thereunder. (div) ~~Each Borrower shall (or shall cause the applicable Operating Lessee to) exercise each individual option~~The REIT Parties will bear all documented change of ownership fees, ~~if any~~termination fees, ~~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,~~ PIP costs and/or other fees 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 costs required by the ~~lien of the Mortgage~~ franchisors and ~~the other Loan Documents~~ incurred in connection with Sections 2(b)(i) 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~~ hereof. Notwithstanding the foregoing, the Lessees will continue to pay when due, and will be responsible for, all fees payable under the Franchise Agreements through the assignment thereof. Upon request ~~is occasioned in connection with a Secondary Market Transaction)~~ by the REIT Parties, the Lessees will request and shall use ~~its diligent best~~ good faith commercially reasonable efforts to obtain from the franchisors, and deliver ~~(or cause~~ to ~~be delivered) an~~ the REIT Parties upon receipt, estoppel ~~certificate from each Franchisor stating that (i) each applicable~~ letters with respect to the 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 fullAgreements. (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.

Appears in 1 contract

Samples: Master Lease Assignment Agreement (Innkeepers Usa Trust/Fl)

Franchise Agreements. (a) ~~Each Non-Marriott Property~~ Subject to the terms of Section 5.24, each Borrower and Maryland Borrower, as the case may be, that is party to a Franchise Agreement shall (i) promptly perform and observe all of the covenants required to be ~~operated~~ performed and observed by it under the ~~terms and conditions of the applicable~~ related 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~~ respects 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (~~iii~~ii) 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~~ under 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~~ which it is aware; (iviii) promptly deliver to Lender a copy of ~~each financial statement, business plan, capital expenditure plan,~~ any notice of a default or other material ~~default~~ notice received by Borrower or Maryland Owner or delivered by Borrower or Maryland Owner under the related Franchise Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower or Maryland Owner receives which indicates that Franchisor is terminating any Franchise Agreement; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Franchisor under the related Franchise Agreement, ~~report regarding operations~~ including causing each Individual Property that is subject to a Franchise Agreement to be operated, maintained and managed at all times and in a manner consistent with the standards for the operation, management and maintenance set forth in 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 Except as provided in Section 5.24, neither Borrower nor Maryland Owner 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 written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) ~~shall be void and~~ surrender, terminate or cancel the Franchise Agreement to which it is a party or otherwise replace Franchisor or enter into any other Franchise Agreement with respect to any Individual Property; (ii) reduce or consent to the reduction of ~~no force and effect.~~ the term of the Franchise Agreement to which it is a party; (ciii) ~~If any franchisee shall default in~~ increase or consent to the ~~performance or observance~~ increase of the amount of any ~~material term, covenant or condition of any~~ charges under a 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, which it is a party; (iv) to the ~~end that~~ extent it has the ~~rights of said franchisee (and/or such Borrower and/or Operating Lessee) in,~~ right to ~~and under such Franchise Agreement shall be kept unimpaired and free from default. Any such amounts~~ do 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 pursuant to the terms of the applicable ~~Subordination Attornment and Security Agreement and/or Assignment of Management~~ Franchise Agreement, ~~Lender~~ permit the applicable Franchisor to assign or encumber its right or interest in the Franchise Agreement to which it is a party; or (v) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Franchise Agreement to which it is a party. (c) Neither Borrower nor Maryland Owner shall pledge, transfer, assign, mortgage, encumber or allow to be encumbered its respective interest in the Franchise Agreement or any ~~person designated by Lender shall have~~interest therein except as provided in the Loan Documents to Lender. Without limiting the foregoing, ~~and are hereby granted,~~ to the extent it has the right to ~~enter upon~~ do so pursuant to the terms of 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~~ neither Borrower nor Maryland Owner shall ~~constitute full protection~~ consent to ~~Lender for~~ any ~~action taken~~ assignment by Franchisor of Franchisor’s interest in the Franchise Agreement or ~~omitted to be taken by Lender in good faith, in reliance thereon~~its right and interests thereunder. (d) ~~Each~~ In the event that 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~~ Maryland Owner replaces Franchisor 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 Loan, the ~~Loan (unless (i) an Event~~ replacement Franchisor shall be a Qualified Franchisor and the requirements of ~~Default has occurred~~ Section 5.24 must be satisfied with respect to such Qualified Franchisor 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 replacement 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.

Appears in 1 contract

Samples: Mortgage Loan Agreement (Ashford Hospitality Trust Inc)

Franchise Agreements. From and after the Funding Date: (a) ~~Each Non-Marriott~~ The Biltmore Hotel Property shall be operated under the terms and conditions of ~~the applicable~~ a Franchise ~~Agreement in all material respects~~Agreement. ~~Each Borrower~~ Operating Lessees shall ~~or shall cause the applicable Operating Lessee to~~ (i) pay all sums required to be paid by the ~~franchisee~~ applicable Operating Lessee under ~~each~~ such Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of ~~each~~ such Franchise Agreement on the part of ~~the franchisee thereunder~~ such Operating Lessee 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~~ any Borrower and/or Operating Lessee under ~~each~~ such Franchise Agreement, (iii) promptly notify ~~Lender~~ Administrative Agent of the giving of any notice to ~~any Borrower and/or~~ such Operating Lessee of any ~~material~~ default by ~~the franchisee~~ such Operating Lessee in the performance or observance of any of the terms, covenants or conditions of ~~any~~ such Franchise Agreement on the part of ~~the franchisee thereunder~~ such Operating Lessee to be performed and observed and deliver to ~~Lender~~ Administrative Agent a true copy of each such notice, and (iv) promptly deliver to ~~Lender~~ Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, ~~notice of a material default~~ notice, report and estimate received by it under ~~the~~ such 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 . Borrowers shall ~~(and shall not cause or permit any Operating Lessee to)~~not, without the prior consent of ~~the Lender~~ Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned), surrender ~~any~~ such Franchise Agreement or terminate or cancel ~~any~~ such Franchise Agreement or modify, change, supplement, alter or amend ~~any~~ such Franchise Agreement, in any material respect, either orally or in writing, ~~and each Borrower~~ provided, however, that Borrowers shall be entitled to terminate or cancel such Franchise Agreement that is replaced with a Replacement Franchise Agreement. Borrowers hereby ~~assigns~~ assign to ~~Lender~~ Administrative Agent as further security for the payment of the ~~Indebtedness~~ Obligations and for the performance and observance of the terms, covenants and conditions of this Agreement and the other Loan ~~Agreement~~Documents, ~~any and~~ all the rights, privileges and prerogatives of ~~each Borrower~~ Borrowers and Operating Lessees to surrender any Franchise Agreement or to terminate, cancel, modify, change, supplement, alter or amend any Franchise Agreement in any material respect, and any such surrender of any Franchise Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of any Franchise Agreement in any material respect without the prior consent of ~~Lender (which consent shall not be unreasonably withheld)~~ Administrative Agent shall be void and of no force and effect. (cb) If any ~~franchisee~~ Operating Lessee 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~~ such Operating Lessee to be performed or ~~observed~~observed after expiration of any applicable notice and cure periods provided in the Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing ~~any~~ a Borrower from any of its obligations hereunder, ~~Lender~~ Administrative Agent shall have the ~~right,~~ 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~~ any Franchise Agreement on the part of the ~~franchisee~~ respective Operating Lessee to be performed or observed to be promptly performed or observed on behalf of such ~~Borrower~~Operating Lessee, to the end that the rights of ~~said franchisee (and/or~~ such ~~Borrower and/or~~ Operating ~~Lessee)~~ Lessee in, to and under such Franchise Agreement shall be kept unimpaired and free from ~~default~~default in all material respects. 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 Administrative Agent and any ~~person~~ Person designated by ~~Lender~~ Administrative Agent by written notice to Borrowers shall have, and are hereby granted, the right to enter upon the ~~applicable Individual Property~~ Collateral Properties at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to ~~Lender~~ Administrative Agent 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~~ Administrative Agent for any action taken or omitted to be taken by ~~Lender~~ Administrative Agent pursuant to the terms of this Agreement and any other Collateral Document in good faith, in reliance thereon~~. (d) Each Borrower shall (or shall cause the applicable~~ . Borrowers shall, from time to time, use their best efforts to obtain from each Franchisor such certificates of estoppel with respect to compliance by each Operating Lessee ~~to)~~ with the terms of its Franchise Agreement as may be requested by Administrative Agent. Each Operating Lessee shall exercise each individual option, if any, to extend or renew the term of ~~each~~ its respective 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~~extent required to continue it in full force and effect until after the Maturity Date, and each ~~Borrower~~ Operating Lessee hereby expressly authorizes and appoints ~~Lender~~ Administrative Agent 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~~Operating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest~~. (e)~~ . Any sums expended by ~~Lender~~ Administrative Agent pursuant to this ~~Section~~ paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to ~~Lender~~Administrative Agent, shall be deemed to constitute a portion of the ~~Indebtedness~~Obligations, shall be secured by the lien of the ~~Mortgage~~ Mortgages and the other Loan Documents and shall be immediately due and payable ~~within two (2) Business Days after~~ upon demand by ~~Lender~~ Administrative Agent therefor. (fc) ~~Each Borrower shall~~To the extent that Administrative Agent’s consent or approval is required under this Section 7.20, ~~promptly upon~~ any such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND ADMINISTRATIVE AGENT” and the envelope containing the request must be marked “PRIORITY”; and (ii) Administrative Agent shall have failed to notify Borrowers of ~~Lender~~its approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s receipt of Borrowers’ written request together with such proposed modification, ~~but~~ change, supplement, alteration or amendment of the Franchise Agreement and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision. In no ~~more than two~~ event shall Administrative Agent be deemed under the preceding sentence to have approved (1) a surrender, termination or cancellation of the Franchise Agreement, (2) ~~times in~~ any ~~calendar year during~~ change having a Material Adverse Effect under the ~~term~~ Franchise Agreement, or (3) a new franchise agreement with a new franchisor (other than a Replacement Franchise Agreement). Upon a Borrower’s request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the ~~Loan~~ reasons for any disapprovals under this Section 7.20. (~~unless~~ d) Notwithstanding the foregoing, so long as (x) no Event of Default exists and is continuing and no Material Adverse Effect and no Material Property Event (other than the Material Property Event caused by the subject default or event of default under the applicable Franchise Agreement, so long as it has not terminated) shall have occurred and (y) the actions described below shall have been completed within one hundred twenty (120) days after the first date on which Administrative Agent became entitled to act under Section 7.20(b) or Section 7.20(c), Administrative Agent shall not take any action under Section 7.20(b) or Section 7.20(d)(ii) with respect to any default or event of default under any Franchise Agreement, if: (i) ~~an Event~~ either: (A) Franchisor has not delivered a notice of ~~Default~~ termination or otherwise sought to terminate the Franchise Agreement and Borrower and Franchisor are diligently prosecuting resolution of the substantive issues underlying the default or event of default in good faith and in a commercially reasonable manner; or (B) Franchisor has ~~occurred~~ delivered a notice of termination or otherwise sought to terminate the Franchise Agreement but such termination is not yet effective, and: (x) the validity of such default or event of default is subject, in good faith, to dispute, by the applicable Borrower, (y) such Borrower is in the process of diligently contesting such disputed default or event of default, and/or prosecuting the resolution of such default in a commercially reasonable manner, and ~~is continuing or~~ (z) in anticipation of such possible termination, such Borrower: 1. promptly engages a new Qualified Franchisor prior to the effective date of such termination; and 2. provides a franchise agreement for such new Qualified Franchisor to Administrative Agent for review and subject to Section 7.20(a) above and the definition of “Replacement Franchise Agreement”, consent and approval at least fifteen (15) days before the effective date of such termination; and (ii) such ~~request is occasioned~~ Borrower delivers to Administrative Agent promptly (and in ~~connection~~ any event within five (5) Business Days of Borrower’s receipt thereof) copies of all notices and material correspondence sent and/or received by the applicable Borrower with ~~a Secondary Market Transaction) use its diligent best efforts~~ respect to ~~obtain and deliver (~~such default 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,~~ default; and (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~~ proposed Replacement Franchise Agreement ~~and (iv) all sums due and payable to such Franchisor under each applicable Franchise Agreement have been paid in full. (g) Upon~~ shall be effective not later than the date of termination of ~~any~~ the 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.

Appears in 1 contract

Samples: Credit Agreement (FelCor Lodging LP)

Franchise Agreements. (a) ~~Each Non-Marriott Property~~ The Improvements on the Properties shall be operated under the terms and conditions of the ~~applicable~~ Franchise ~~Agreement in all material respects~~Agreements. ~~Each~~ Borrower shall ~~or shall~~ cause to the ~~applicable~~ Operating Lessee to (i) pay all sums required to be paid by Operating Lessee under the ~~franchisee under each~~ Franchise ~~Agreement~~Agreements, (ii) diligently perform, observe and enforce all of the material terms, covenants and conditions of ~~each~~ the Franchise ~~Agreement~~ Agreements on the part of ~~the franchisee thereunder~~ Operating Lessee to be performed, observed and enforced to in accordance with the ~~end that all things shall be done which are necessary to keep unimpaired the rights of said franchisee under each Franchise Agreement~~terms thereof, (iii) promptly notify Lender of the giving of any notice to ~~any Borrower and/or~~ Operating Lessee of any ~~material~~ default by ~~the franchisee~~ Operating Lessee in the performance or observance of any of the material terms, covenants or conditions of any Franchise Agreement on the part of ~~the franchisee thereunder~~ Operating Lessee 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~~ plan and ~~any other items reasonably requested by Lender, in each case~~ estimate received by ~~any Borrower or Operating Lessee~~ it 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), conditioned or delayed, 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; provided, however, that immaterial modifications or amendments, changes or supplements of any Franchise Agreement may be made without consent of Lender. Subject to the rights of Mortgage Lender and ~~each~~ Mezzanine A Lender, Borrower hereby assigns to Lender as further security for the payment of the ~~Indebtedness~~ Debt and for the performance and observance of the terms, covenants and conditions of this ~~Loan~~ Agreement, ~~any and~~ all the rights, privileges and prerogatives of ~~each~~ Borrower to cause Mezzanine A Borrower, Mortgage Borrower and/or Operating Lessee to surrender ~~any~~ the Franchise ~~Agreement~~ Agreements or to terminate, cancel, materially modify, change, supplement, alter or amend ~~any~~ the Franchise ~~Agreement~~ Agreements in any ~~respect~~respect except as otherwise permitted in this Agreement, and any such surrender of any Franchise Agreement or termination, cancellation, material 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 (other than as permitted in this Agreement) and of no force and effect~~. (c)~~ . If ~~any franchisee~~ Operating Lessee or Mortgage Borrower 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~~ Operating Lessee to be performed or observed, if such default is not remedied within the lesser of (i) five (5) days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Mortgage Borrower and/or Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Agreement, but subject to the rights of Mortgage Lender and Mezzanine A Lender, 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~~ the Franchise Agreement on the part of ~~the franchisee~~ Operating Lessee to be performed or observed to be promptly performed or observed on behalf of ~~such Borrower,~~ Operating Lessee. Subject to ~~the end that~~ the rights of ~~said franchisee (and/or such Borrower and/or Operating Lessee) in, to~~ Mortgage Lender 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 AgreementMezzanine A Lender, Lender and any ~~person~~ Person designated by Lender shall have, and are hereby granted, the right to enter upon the ~~applicable Individual Property~~ Properties at any time and from time to time for the purpose of taking any such action. If ~~any~~ a Franchisor shall deliver to Lender a copy of any notice sent to ~~any Borrower and/or~~ Operating Lessee or Mortgage Borrower of ~~any~~ default under ~~any~~ a 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~~ , from time to time, use commercially reasonable efforts to obtain from each ~~individual option~~Franchisor and deliver to Lender, ~~if any,~~ Mortgage Lender and Mezzanine A Lender such certificates of estoppel with respect to ~~extend or renew~~ compliance by Operating Lessee with the ~~term~~ terms of ~~each~~ the applicable Franchise Agreement ~~upon demand~~ as may be reasonably requested by Lender ~~made at any time within ninety (90) days prior~~ provided, that, so long as no Event of Default has occurred and is continuing, Borrower shall not be required 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~~provide such statement more than one (1) time in any Fiscal Year, provided, further, that such ~~option in the name of and upon behalf of such Borrower should such Borrower fail to do so, which power of attorney~~ estoppel shall be ~~irrevocable~~ addressed to both Lender, Mortgage Lender and ~~shall be deemed to be coupled with an interest. (e)~~ Mezzanine A Lender. Any sums expended by Lender pursuant to this ~~Section~~ paragraph 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~~Debt, shall be secured by the lien of the ~~Mortgage~~ Pledge Agreement and the other Loan Documents and shall be immediately due and payable ~~within two (2) Business Days after~~ upon demand by Lender therefor. . Notwithstanding the foregoing, Borrower shall have the right to cause Operating Lessee to, without Lender’s consent (~~f) Each Borrower shall~~except with respect to any Lender consent required pursuant to the definitions of Qualified Franchisor and Replacement Franchise Agreement set forth herein), ~~promptly upon request of Lender, but no more than two (2) times in~~ replace Franchisor and terminate the related Franchise Agreement provided that the replacement franchisor is a Qualified Franchisor pursuant to a Replacement Franchise Agreement and any ~~calendar year during~~ termination fees and other sums payable to the ~~term of the Loan (unless~~ Franchisor being replaced are either (i) ~~an Event~~ paid from Excess Cash Flow which is entitled to be used for such payment in accordance with the terms and conditions of ~~Default has occurred and is continuing~~ this Agreement or (ii) ~~such request~~ paid from an equity contribution to the Operating Lessee from sources other than the Collateral, the Mezzanine A Loan Collateral and the Mortgage Loan Collateral. (b) At all times when Operating Lessee is ~~occasioned in connection with a Secondary Market Transaction) use its diligent best efforts~~ the party entitled to ~~obtain~~ the benefits of (and ~~deliver (or cause to be delivered) an estoppel certificate from each Franchisor stating that (i~~is primarily responsible for the performance of the obligations under) 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~~ to comply with the terms of this Section 5.1.30 with respect to such Franchise Agreement. In the event that Mortgage Borrower is a ~~new~~ party to any Franchise Agreement (or obligated under any related agreement), Borrower shall cause Mortgage Borrower to comply with all obligations of Operating Lessee under this Section 5.1.30 with respect to such Franchise Agreement as if Mortgage Borrower were Operating Lessee. Additionally, Borrower shall cause Mortgage Borrower to perform any and all obligations of Mortgage Borrower under the Franchise Agreement in the same manner as required of Operating Lessee under this Section 5.1.30 and Borrower shall cause each of Mortgage Borrower and Operating Lessee to cause any other Borrower Affiliate which is a ~~replacement Franchisor~~party to any Franchise Agreement to so perform its obligations under the applicable Franchise Agreement. (c) In the event a New LLC Borrower acquires an Individual Property pursuant to Section 5.2.10(i) and Borrower shall cause Operating Lessee and Mortgage Borrower terminate the Operating Lease with respect to such Individual Property in accordance with the terms of this Agreement, ~~which~~ Borrower shall ~~deliver a comfort or similar letter~~ cause Operating Lessee to assign and ~~in favor of Lender, all upon terms and conditions reasonably acceptable~~ New LLC Borrower to ~~Lender~~assume the Franchise Agreement for such Individual Property.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (BRE Select Hotels Corp)

Franchise Agreements. (a) Each ~~Non-Marriott Property~~ Borrowers 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~~ observe and perform and perform all ~~sums required~~ of the material terms, covenants, conditions and provisions of the Franchise Agreements to be ~~paid~~ observed and performed by any of them at the ~~franchisee under each Franchise Agreement~~times set forth therein, if any, (ii) ~~diligently perform~~not do, ~~observe and enforce all~~ permit, suffer or refrain from doing anything which could reasonably be expected to result in a material default under or material breach of any of the ~~terms, covenants and conditions~~ terms 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 any Franchise Agreement, (iii) ~~promptly notify Lender~~ not cancel, surrender, modify, amend, waive or release any Franchise Agreement in any material respect or any term, provision or right of a Borrower thereunder in any material respect, or consent to or permit to occur any of the ~~giving~~ foregoing; except that, subject to Section 9.24(b) below, a Borrower may cancel, surrender or release any Franchise Agreement in the ordinary course of the business of such Borrower; provided that, Borrowers shall give Lender not less than ten (10) days prior written notice of the intention to so cancel, surrender and release any such Franchise Agreement, (iv) give Lender prompt written notice of any ~~notice to~~ Franchise Agreement entered into by any Borrower ~~and/or Operating Lessee~~ after the date hereof, together with a true, correct and complete copy thereof and such other information with respect thereto as lender may reasonably request, (v) give Lender prompt written notice of any material ~~default~~ breach of any obligation, or any default, by any party under any Franchise Agreement, and deliver to Lender (promptly upon the ~~franchisee~~ receipt thereof by a Borrower in the case of a notice to a Borrower, and concurrently with the sending thereof in the case of a notice from a Borrower) a copy of each notice of default received or delivered by a Borrower in connection with any Franchise Agreement, and (vi) furnish to Lender, promptly upon the request of Lender, such information and evidence as Lender may reasonable require from time to time concerning the observance, performance and compliance by any Borrower or ~~observance of any of~~ the other party or parties thereto with the terms, covenants or ~~conditions~~ provisions 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 (~~will either exercise any option to renew 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~~ in such manner as will cause the term of such Franchise Agreement to be effectively renewed or extended in accordance with, and subject to, the terms thereof, for the period provided by such option and give prompt written notice thereof to Lender ~~made at~~ or give Lender prior written notice that such Borrower does not intend to renew or extend the term of any ~~time within ninety~~ such Franchise Agreement or that the term thereof shall otherwise be expiring, not less than ten (9010) days prior to the ~~last day upon which~~ date of any such ~~option may be exercised~~non-renewal or expiration. In the event of the failure of a Borrower to extend or renew any Franchise Agreement, Lender shall have, and ~~each Borrower~~ is hereby ~~expressly authorizes~~ granted, the irrevocable right and ~~appoints~~ authority, at its option in accordance with, and subject to, the terms thereof to renew or extend the term of such Franchise Agreement, whether in its own name and behalf, or in the name and behalf of a designee or nominee of 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~~ or on behalf of ~~such Borrower should such Borrower fail to do so~~any Borrower, ~~which power of attorney~~ as Lender 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~~ determine, 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)~~ time that an Event of Default ~~has~~ shall exist or have 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 continuing. Any sums so paid by Lender shall constitute part 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 fullObligations. (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.

Appears in 1 contract

Samples: Loan and Security Agreement (Nutritional Sourcing Corp)

Franchise Agreements. Each Borrower shall (ai) ~~Each Non-Marriott Property shall~~ cause the hotels located on its Properties to be operated pursuant to the applicable Franchise Agreement; (ii) promptly perform and observe all of the covenants required to be performed and observed by it 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~~ do all things ~~shall be done which are~~ necessary to preserve and to keep unimpaired ~~the~~ its material rights ~~of said franchisee under each Franchise Agreement,~~ thereunder; (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~~ under 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~~ which it is aware; (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital ~~expenditure~~ expenditures plan, ~~notice of a material default~~ notice, report and estimate received by it under the Franchise ~~Agreement~~Agreements; and (v) promptly enforce in accordance with commercially reasonable practices the performance and observance of all of the material covenants required to be performed and observed by the franchisor under the Franchise Agreements. Without Lender’s prior consent, 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 no Borrower shall (~~and shall not cause or permit any Operating Lessee to)~~i) surrender, ~~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~~ Agreement; (ii) reduce or consent to the reduction of the term of any Franchise Agreement; (iii) increase or consent to the increase of the amount of any charges under any Franchise Agreement; (iv) otherwise modify, change, supplement, alter or ~~amend~~ amend, or waive or release any ~~Franchise Agreement~~of its rights and remedies under, 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~~ (v) suffer or ~~amend~~ permit the occurrence of continuance a default beyond any applicable cure period under any Franchise Agreement in (or any ~~respect, and any~~ successor franchise agreement) if such ~~surrender of any~~ default permits the franchisor to terminate or cancel such Franchise Agreement (or ~~termination~~any successor franchise agreement). Notwithstanding anything to the contrary in this Section 5.31, 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 Borrowers shall have the ~~right~~right to surrender, ~~but shall be under no obligation, to pay any sums and to perform any act~~ terminate or ~~take any action as may be appropriate to cause all the terms, covenants and conditions of such Franchise Agreement on the part~~ cancel one or more of the ~~franchisee to be performed or observed to be promptly performed or observed on behalf of such Borrower,~~ Franchise Agreements with respect to the ~~end~~ applicable Property or Properties provided that ~~the rights of said franchisee~~ (~~and/or such Borrower and/or Operating Lessee~~a) 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~~ an Approved Franchisor which new agreement shall be on such Approved Franchisor’s then-current standard for or otherwise reasonably satisfactory to Lender and (B) such new agreement shall become effective immediately upon the expiration of Franchise Agreement which is being replaced and (C) Borrowers shall provide Lender with security to ensure the payment of any cancellation, termination or any other fees or costs fees payable in connection with the Franchise Agreement which is being replaced, together with any fees, expenses or costs (including PIP costs) incurred or payable in connection with the entry into the new Franchise Agreement, which security shall ~~deliver a comfort or similar letter to and in favor~~ not be less than 125% of Lender’s reasonable estimate of all such fees, ~~all upon terms and conditions reasonably acceptable to Lender~~expenses or costs.

Appears in 1 contract

Samples: Loan Agreement (Supertel Hospitality Inc)

Franchise Agreements. OPERATING LEASES -------------------------------------- (a) ~~Each Non-Marriott Property shall be operated under~~ To the ~~terms and conditions~~ best of Borrower's knowledge, each of the ~~applicable~~ Franchise ~~Agreement in all material respects. Each Borrower shall or shall cause~~ Agreements between the respective Operating Lessee and the Franchisor listed on Schedule IV, pursuant to which 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, has the right to ~~enter upon~~ operate the ~~applicable~~ hotel located on the Individual Property ~~at any time and from time to time for the purpose of taking any~~ under a name and/or hotel system controlled by 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~~Franchisor, 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~~there is no default, ~~amended~~ breach or ~~assigned, (ii) neither such Franchisor nor the franchisee named~~ violation existing thereunder ~~is in default under~~ by any ~~of the terms, covenants or provisions of each applicable Franchise Agreement~~ party thereto and ~~such Franchisor knows of~~ no event ~~which~~has occurred (other than payments due but not yet delinquent) that, ~~but for~~ with the passage of time or the giving of ~~notice~~ notice, or both, would constitute ~~an event of default under each applicable Franchise Agreement~~a default, ~~(iii) neither such Franchisor nor~~ breach or violation by any party thereunder. Borrower shall not permit, to the ~~franchisee thereunder has commenced any action~~ extent empowered to do so, or ~~given~~ consent to the termination, extension or ~~received any notice for~~ modification or 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 entering into of any Franchise ~~Agreement~~Agreement without Lender's prior written consent, ~~each Borrower~~ which consent shall (not be unreasonably conditioned, withheld or ~~shall cause Operating Lessee to) promptly enter into~~ delayed; provided, however, with respect to a new Franchise Agreement entered into after a Securitization, such consent may be conditioned upon Borrower delivering evidence in writing from the applicable Rating Agencies to the effect that such new Franchise Agreement will not result in a downgrade, withdrawal or qualification of the respective ratings then in effect for any Securities issued in connection with a ~~replacement Franchisor~~Securitization. All payments due under the Franchise Agreements shall be the sole obligation of the applicable Operating Lessee and not of Borrower; provided, however, that Borrower may be responsible for additional payments with respect to the Franchise Agreements more particularly described on Schedule XII hereto ------------- pursuant to the owner's agreements more particularly described on Schedule XIII hereto. ------------- (b) Each Operating Lease, pursuant to which the applicable Operating Lessee operates the respective Individual Property as a hotel, is in full force and effect and there is no default, breach or violation existing thereunder by Borrower or, to the best of Borrower's knowledge, any other party thereto and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation by any party thereunder. The fee due under each Operating Lease, and the terms and provisions of the Operating Lease, are subordinate to this Agreement and the Mortgage. Borrower shall ~~deliver~~ not terminate, cancel, modify, renew or extend any Operating Lease (other than a ~~comfort~~ termination by Borrower due to the non- payment of Rent due thereunder by the Operating Lessee in accordance with the terms of the applicable Operating Lease beyond any applicable notice and cure periods), or ~~similar letter~~ enter into any agreement relating to ~~and in favor~~ the management or operation of any Individual Property with the applicable Operating Lessee or any other party without the express written consent of Lender, ~~all~~ which consent shall not be unreasonably conditioned, withheld or delayed; provided, however, that with respect to a new Operating Lessee such consent may be conditioned upon ~~terms~~ Borrower delivering evidence in writing from the applicable Rating Agencies to the effect that such new Operating Lessee will not result in a downgrade, withdrawal or qualification of the respective ratings then in effect for any Securities issued in connection with a Securitization. If at any time Lender consents to the appointment of a new Operating Lessee, such new Operating Lessee and ~~conditions reasonably acceptable to~~ Borrower shall, as a condition of Lender's consent, execute a Nondisturbance Agreement. In the event any one Operating Lessee operates more than one Individual Property, each such Operating Lease shall be cross defaulted with the Operating Leases covering any of the other Properties entered into with such Operating Lessee. (c) Neither the execution and delivery of the Loan Documents, Borrower's performance thereunder, nor the exercise of any remedies by Lender, will adversely affect Borrower's rights under the Franchise Agreements, the Operating Leases, or any of the Licenses.

Appears in 1 contract

Samples: Loan Agreement (Winston Hotels Inc)

Franchise Agreements. (a) Each ~~Non-Marriott Property~~ Borrowers 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~~ observe and perform and perform all ~~sums required~~ of the material terms, covenants, conditions and provisions of the Franchise Agreements to be ~~paid~~ observed and performed by any of them at the ~~franchisee under each Franchise Agreement~~times set forth therein, if any, (ii) ~~diligently perform~~not do, ~~observe and enforce all~~ permit, suffer or refrain from doing anything which could reasonably be expected to result in a material default under or material breach of any of the ~~terms, covenants and conditions~~ terms 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 any Franchise Agreement, (iii) ~~promptly notify Lender~~ not cancel, surrender, modify, amend, waive or release any Franchise Agreement in any material respect or any term, provision or right of a Borrower thereunder in any material respect, or consent to or permit to occur any of the ~~giving~~ foregoing; except that, subject to Section 9.24(b) below, a Borrower may cancel, surrender or release any Franchise Agreement in the ordinary course of the business of such Borrower; provided that, Borrowers shall give Lender not less than ten (10) days prior written notice of the intention to so cancel, surrender and release any such Franchise Agreement, (iv) give Lender prompt written notice of any ~~notice to~~ Franchise Agreement entered into by any Borrower ~~and/or Operating Lessee~~ after the date hereof, together with a true, correct and complete copy thereof and such other information with respect thereto as lender may reasonably request, (v) give Lender prompt written notice of any material ~~default~~ breach of any obligation, or any default, by any party under any Franchise Agreement, and deliver to Lender (promptly upon the ~~franchisee~~ receipt thereof by a Borrower in the case of a notice to a Borrower, and concurrently with the sending thereof in the case of a notice from a Borrower) a copy of each notice of default received or delivered by a Borrower in connection with any Franchise Agreement, and (vi) furnish to Lender, promptly upon the request of Lender, such information and evidence as Lender may reasonable require from time to time concerning the observance, performance and compliance by any Borrower or ~~observance of any of~~ the other party or parties thereto with the terms, covenants or ~~conditions~~ provisions 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 (~~will either exercise any option to renew 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~~ in such manner as will cause the term of such Franchise Agreement to be effectively renewed or extended in accordance with, and subject to, the terms thereof, for the period provided by such option and give prompt written notice thereof to Lender ~~made at~~ or give Lender prior written notice that such Borrower does not intend to renew or extend the term of any ~~time within ninety~~ such Franchise Agreement or that the term thereof shall otherwise be expiring, not less than ten (9010) days prior to the ~~last day upon which~~ date of any such ~~option may be exercised~~non - renewal or expiration. In the event of the failure of a Borrower to extend or renew any Franchise Agreement, Lender shall have, and ~~each Borrower~~ is hereby ~~expressly authorizes~~ granted, the irrevocable right and ~~appoints~~ authority, at its option in accordance with, and subject to, the terms thereof to renew or extend the term of such Franchise Agreement, whether in its own name and behalf, or in the name and behalf of a designee or nominee of 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~~ or on behalf of ~~such Borrower should such Borrower fail to do so~~any Borrower, ~~which power of attorney~~ as Lender 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~~ determine, 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)~~ time that an Event of Default ~~has~~ shall exist or have 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 continuing. Any sums so paid by Lender shall constitute part 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 fullObligations. (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.

Appears in 1 contract

Samples: Loan and Security Agreement (Nutritional Sourcing Corp)

Franchise Agreements. (a) ~~Each Non-Marriott Property~~ The Improvements on the Properties shall be operated under the terms and conditions of the ~~applicable~~ Franchise ~~Agreement in all material respects~~Agreements. ~~Each~~ Borrower shall ~~or shall~~ cause to the ~~applicable~~ Operating Lessee to (i) pay all sums required to be paid by Operating Lessee under the ~~franchisee under each~~ Franchise ~~Agreement~~Agreements, (ii) diligently perform, observe and enforce all of the material terms, covenants and conditions of ~~each~~ the Franchise ~~Agreement~~ Agreements on the part of ~~the franchisee thereunder~~ Operating Lessee to be performed, observed and enforced to in accordance with the ~~end that all things shall be done which are necessary to keep unimpaired the rights of said franchisee under each Franchise Agreement~~terms thereof, (iii) promptly notify Lender of the giving of any notice to ~~any Borrower and/or~~ Operating Lessee of any ~~material~~ default by ~~the franchisee~~ Operating Lessee in the performance or observance of any of the material terms, covenants or conditions of any Franchise Agreement on the part of ~~the franchisee thereunder~~ Operating Lessee 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~~ plan and ~~any other items reasonably requested by Lender, in each case~~ estimate received by ~~any Borrower or Operating Lessee~~ it 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), conditioned or delayed, 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; provided, ~~and each~~ however, that immaterial modifications or amendments, changes or supplements of any Franchise Agreement may be made without consent of Lender. Subject to the rights of Mortgage Lender, Borrower hereby assigns to Lender as further security for the payment of the ~~Indebtedness~~ Debt and for the performance and observance of the terms, covenants and conditions of this ~~Loan~~ Agreement, ~~any and~~ all the rights, privileges and prerogatives of ~~each~~ Borrower to cause Mortgage Borrower and/or Operating Lessee to surrender ~~any~~ the Franchise ~~Agreement~~ Agreements or to terminate, cancel, materially modify, change, supplement, alter or amend ~~any~~ the Franchise ~~Agreement~~ Agreements in any ~~respect~~respect except as otherwise permitted in this Agreement, and any such surrender of any Franchise Agreement or termination, cancellation, material 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 (other than as permitted in this Agreement) and of no force and effect~~. (c)~~ . If ~~any franchisee~~ Operating Lessee or Mortgage Borrower 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~~ Operating Lessee to be performed or observed, if such default is not remedied within the lesser of (i) five (5) days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Mortgage Borrower and/or Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Agreement, but subject to the rights of Mortgage Lender, 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~~ the Franchise Agreement on the part of ~~the franchisee~~ Operating Lessee to be performed or observed to be promptly performed or observed on behalf of ~~such Borrower,~~ Operating Lessee. Subject 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 AgreementMortgage Lender, Lender and any ~~person~~ Person designated by Lender shall have, and are hereby granted, the right to enter upon the ~~applicable Individual Property~~ Properties at any time and from time to time for the purpose of taking any such action. If ~~any~~ a Franchisor shall deliver to Lender a copy of any notice sent to ~~any Borrower and/or~~ Operating Lessee or Mortgage Borrower of ~~any~~ default under ~~any~~ a 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~~ , from time to time, use commercially reasonable efforts to obtain from each ~~individual option~~Franchisor and deliver to Lender, ~~if any,~~ Mortgage Lender and Mezzanine B Lender such certificates of estoppel with respect to ~~extend or renew~~ compliance by Operating Lessee with the ~~term~~ terms of ~~each~~ the applicable Franchise Agreement ~~upon demand~~ as may be reasonably requested by Lender ~~made at any time within ninety (90) days prior~~ provided, that, so long as no Event of Default has occurred and is continuing, Borrower shall not be required 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~~provide such statement more than one (1) time in any Fiscal Year, provided, further, that such ~~option in the name of and upon behalf of such Borrower should such Borrower fail to do so, which power of attorney~~ estoppel shall be ~~irrevocable~~ addressed to both Lender, Mortgage Lender and ~~shall be deemed to be coupled with an interest. (e)~~ Mezzanine B Lender. Any sums expended by Lender pursuant to this ~~Section~~ paragraph 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~~Debt, shall be secured by the lien of the ~~Mortgage~~ Pledge Agreement and the other Loan Documents and shall be immediately due and payable ~~within two (2) Business Days after~~ upon demand by Lender therefor. . Notwithstanding the foregoing, Borrower shall have the right to cause Operating Lessee to, without Lender’s consent (~~f) Each Borrower shall~~except with respect to any Lender consent required pursuant to the definitions of Qualified Franchisor and Replacement Franchise Agreement set forth herein), ~~promptly upon request of Lender, but no more than two (2) times in~~ replace Franchisor and terminate the related Franchise Agreement provided that the replacement franchisor is a Qualified Franchisor pursuant to a Replacement Franchise Agreement and any ~~calendar year during~~ termination fees and other sums payable to the ~~term of the Loan (unless~~ Franchisor being replaced are either (i) ~~an Event~~ paid from Excess Cash Flow which is entitled to be used for such payment in accordance with the terms and conditions of ~~Default has occurred and is continuing~~ this Agreement or (ii) ~~such request~~ paid from an equity contribution to the Operating Lessee from sources other than the Collateral and the Mortgage Loan Collateral. (b) At all times when Operating Lessee is ~~occasioned in connection with a Secondary Market Transaction) use its diligent best efforts~~ the party entitled to ~~obtain~~ the benefits of (and ~~deliver (or cause to be delivered) an estoppel certificate from each Franchisor stating that (i~~is primarily responsible for the performance of the obligations under) 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~~ to comply with the terms of this Section 5.1.30 with respect to such Franchise Agreement. In the event that Mortgage Borrower is a ~~new~~ party to any Franchise Agreement (or obligated under any related agreement), Borrower shall cause Mortgage Borrower to comply with all obligations of Operating Lessee under this Section 5.1.30 with respect to such Franchise Agreement as if Mortgage Borrower were Operating Lessee. Additionally, Borrower shall cause Mortgage Borrower to perform any and all obligations of Mortgage Borrower under the Franchise Agreement in the same manner as required of Operating Lessee under this Section 5.1.30 and Borrower shall cause each of Mortgage Borrower and Operating Lessee to cause any other Borrower Affiliate which is a ~~replacement Franchisor~~party to any Franchise Agreement to so perform its obligations under the applicable Franchise Agreement. (c) In the event a New LLC Borrower acquires an Individual Property pursuant to Section 5.2.10(i) and Borrower shall cause Operating Lessee and Mortgage Borrower terminate the Operating Lease with respect to such Individual Property in accordance with the terms of this Agreement, ~~which~~ Borrower shall ~~deliver a comfort or similar letter~~ cause Operating Lessee to assign and ~~in favor of Lender, all upon terms and conditions reasonably acceptable~~ New LLC Borrower to ~~Lender~~assume the Franchise Agreement for such Individual Property.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (BRE Select Hotels Corp)

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~~ Any Franchise Agreement with respect to a Pool A Property or any consent delivered by any franchisor under any such Franchise Agreement shall cease to be ~~paid by~~ in full force and effect other than with the ~~franchisee under each Franchise Agreement,~~ express consent of the Agent or (ii) ~~diligently perform, observe and enforce all of the terms, covenants and conditions of each Franchise Agreement on the part of the franchisee~~ any party thereto shall deny or disaffirm its obligations thereunder ~~to be performed, observed and enforced to the end that all things~~ or 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 deny or ~~observance of any of the terms, covenants~~ disaffirm its obligations thereunder 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 due performance or observance of any material term, covenant or ~~condition of any Franchise Agreement~~ 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 party to be performed or observed pursuant thereto and any applicable cure period shall have expired, and in any such event the Borrower shall have failed 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~~ replace such Franchise Agreement ~~shall be kept unimpaired and free from default. Any~~ within 60 days of such ~~amounts so advanced by Lender together~~ default (after the expiration of any such cure period) or disaffirmation 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~~ a franchise acceptable to the ~~terms~~ Agent, in its sole discretion; (i) upon the occurrence of any Event of Default described in subsection 7.1J or 7.1K, each of (a) the ~~applicable Subordination Attornment~~ unpaid principal amount of and ~~Security Agreement and/or Assignment~~ accrued interest on the Loans and (b) all other Obligations shall automatically become immediately due and payable, without notice, presentment, demand, protest or other requirements of ~~Management Agreement~~any kind, ~~Lender and any person designated by Lender shall have, and~~ all of which are hereby ~~granted,~~ expressly waived by the ~~right to enter upon~~ Borrower and 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 obligations of each ~~Franchise Agreement upon demand by~~ Lender ~~made at~~ to make any ~~time within ninety (90) days~~ Loan hereunder prior to the ~~last day upon which any such option may be exercised~~Funding Date shall thereupon terminate, and ~~each Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise~~ (~~or cause~~ ii) during the ~~applicable Operating Lessee to exercise)~~ continuance of any ~~such option in~~ other Event of Default, the ~~name~~ Agent, upon the written request of ~~and upon behalf of such Borrower should such Borrower fail to do so~~the Requisite Lenders, ~~which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. (e) Any sums expended~~ shall, by ~~Lender pursuant to this Section shall bear interest at the Default Rate from the date such cost is incurred~~ written notice to the ~~date of payment~~ Borrower, terminate the Commitments (to ~~Lender, shall be deemed to constitute a~~ the extent not theretofore terminated) and declare all or any portion of the ~~Indebtedness~~amounts described in clauses (a) and (b) above to be, ~~shall be secured by the lien of the Mortgage~~ and the ~~other Loan Documents and~~ same shall be forthwith become, immediately due and ~~payable within two (2) Business Days after demand by Lender therefor. (f) Each Borrower shall, promptly upon request~~ payable. The occurrence of ~~Lender, but no more than two (2) times in~~ any ~~calendar year during the term of the Loan (unless (i)~~ condition or event may constitute 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~~a Potential Event of Default) 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~~ more than one provision 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 fullthis subsection 7.1. (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.

Appears in 1 contract

Samples: Senior Subordinated Credit Agreement (Capstar Hotel Co)

Common use of Franchise Agreements Clause in Contracts