Franchise Provisions. (a) Lender acknowledges and agrees that, as of the Closing Date, (i) Borrower is indirectly owned in whole by Wyndham; (ii) the Property is operated as a “Wyndham” or “Summerfield Suites” hotel and is not subject to a franchise agreement or other agreement in connection with such operation other than the Management Agreement. Borrower shall obtain the approval of Lender, which approval shall not be unreasonably withheld or delayed by Lender, before entering into any franchise agreement (the “Franchise Agreement”) with any franchisor (the “Franchisor”) that provides for, or permits, the operation of the Property under such Franchisor’s brand or “flag”. Any Franchise Agreement must include, among other things, rights in the Franchisor’s reservation system and a term of not less than the remaining term of the Loan. Borrower shall deliver to Lender any such Franchise Agreement for Lender’s review and approval. (b) If Borrower shall enter into any Franchise Agreement, Lender shall receive within thirty (30) days following the execution of such Franchise Agreement a comfort letter from the Franchisor, in which Franchisor shall agree (i) that Lender shall have the right, but not the obligation, to cure any defaults under the Franchise Agreement, (ii) to give Lender written notice of, and a reasonable time to cure, any default of Borrower under the Franchise Agreement; (iii) not to assert against Lender any defaults which by their nature are personal to Borrower and are not curable by Lender; (iv) to allow Lender to change managers of the Property; (v) that, if Lender or its affiliate shall acquire title to the Property, Lender or its affiliate shall have an option to succeed to the interest of Borrower under the Franchise Agreement (or to be granted a new Franchise Agreement on the same terms as the Franchise Agreement) without payment of any fees to Franchisor (other than nominal, processing fees); (vi) that the Franchise Agreement will remain in effect during any foreclosure proceedings by Lender provided Lender cures all monetary defaults under the Franchise Agreement; (vii) not to modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term without the consent of Lender; and (viii) that if Lender or its Affiliate succeeds to Borrower’s interest under the Franchise Agreement, Lender may assign its rights therein to any entity which acquires the Property from Lender or its Affiliate (subject to Franchisor’s reasonable approval). The foregoing to the contrary notwithstanding, Lender will not unreasonably withhold approval of Franchisor’s standard form of “comfort letter”. (c) Borrower shall not, and Borrower shall not permit any Affiliate to, modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term without the consent of Lender, such consent not to be unreasonably withheld or delayed; provided that, in connection with a cancellation, surrender or termination, such Franchise Agreement shall be replaced with a substitute franchise agreement reasonably approved by Lender or such other arrangement for the operation of the Property, reasonably approved by Lender. Borrower shall promptly deliver to Lender copies of any notices of default sent or received by or on behalf of Borrower or any of its Affiliates under the Franchise Agreement. (d) Borrower shall at all times that the Debt is outstanding cause the hotel located on the Property to be operated as (i) a “Wyndham” or a “Summerfield Suites” hotel (or in the name of any successor entity), or (ii) a hotel franchise of a first class, reputable hotel franchise reasonably acceptable to Lender pursuant to a franchise agreement and management agreement reasonably acceptable to Lender. (e) Borrower shall: (i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Franchise Agreement of which it is aware; (iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement; (iv) promptly enforce the performance and observance in all material respects of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement; and (v) exercise all rights of renewals or extension of the Franchise Agreement (and Borrower hereby appoints Lender as its attorney-in-fact to exercise such options in the name of and on behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest).
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Franchise Provisions. (a) Lender acknowledges and agrees that, as of the Closing Date, (i) Borrower is indirectly owned in whole by Wyndham; (ii) the Property is operated as a “Wyndham” or “Summerfield Suites” hotel and is not subject to a franchise agreement or other agreement in connection with such operation other than the Management Agreement. Borrower shall obtain the prior written approval of Lender, which approval shall not be unreasonably withheld withheld, conditioned or delayed by Lender, before entering causing or permitting Mortgage Borrower to enter into any franchise agreement (the a “Franchise Agreement”) with any franchisor (the “Qualified Franchisor”) that provides for, or permits, providing for the operation of the Property under such Franchisor’s brand or “flag”Property. Any Franchise Agreement must include, among other things, rights in the Franchisor’s reservation system and a term of not less than the remaining term of the Loan. Borrower shall deliver or cause to be delivered to Lender any such Franchise Agreement and the related Comfort Letter (as defined herein) for Lender’s review and approval, which approval shall not be unreasonably withheld or delayed.
(b) If Borrower shall cause or permit Mortgage Borrower to enter into any Franchise Agreement, Lender shall receive within thirty (30) days following the execution of such Franchise Agreement a comfort letter (a “Comfort Letter”) from the franchisor identified in such Franchise Agreement (the “Franchisor”), in such Franchisor’s customary form, which Franchisor shall agree form may include some or all of the following agreements or provisions: (i) that Lender shall have the right, but not the obligation, to cure any defaults under the such Franchise Agreement, ; (ii) to give Lender written notice of, and a reasonable time to cure, any default of Mortgage Borrower under the such Franchise Agreement; (iii) not to assert against Lender any defaults which by their nature are personal to Mortgage Borrower and are not curable by Lender; (iv) to allow Lender to change managers of the Property; (v) that, if Lender or its affiliate shall acquire title to the PropertyProperty or the Collateral, Lender or its affiliate shall have an option to succeed to the interest of Mortgage Borrower under the such Franchise Agreement (or to be granted a new Franchise Agreement franchise agreement on the same terms as the such Franchise Agreement) without payment of any fees to Franchisor (other than nominal, processing fees)Franchisor; (vi) that the Franchise Agreement will remain in effect during any foreclosure proceedings by Lender provided Lender cures all monetary defaults under the such Franchise Agreement; (vii) not to modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term term of the Loan without the consent of Lender; and (viii) that if Lender or its Affiliate affiliate succeeds to Mortgage Borrower’s interest under the Franchise Agreement, Lender may assign its rights therein to any entity which acquires the Property or the Collateral from Lender or its Affiliate affiliate (subject to Franchisor’s reasonable approval). The foregoing to the contrary notwithstanding, Lender will not unreasonably withhold approval of Franchisor’s standard form of “comfort letter”.
(c) if Borrower shall not, and cause Mortgage Borrower shall not permit any Affiliate to, modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term without the consent of Lender, such consent not to be unreasonably withheld or delayed; provided that, in connection with enter into a cancellation, surrender or termination, such Franchise Agreement shall be replaced with a substitute franchise agreement reasonably approved by Lender or such other arrangement for the operation of the Property, reasonably approved by Lender. Borrower shall promptly deliver to Lender copies of any notices of default sent or received by or on behalf of Borrower or any of its Affiliates under the Franchise Agreement.
(d) Borrower shall at all times that the Debt is outstanding cause the hotel located on the Property to be operated as (i) a “Wyndham” or a “Summerfield Suites” hotel (or in the name of any successor entity), or (ii) a hotel franchise of a first class, reputable hotel franchise reasonably acceptable to Lender pursuant to a franchise agreement and management agreement reasonably acceptable to Lender.
(e) Borrower shall:
(i) promptly cause Mortgage Borrower to perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunderthereunder in a commercially reasonable manner;
(ii) promptly notify Lender of any default under the Franchise Agreement of which it Borrower or Mortgage Borrower is aware;
(iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it Borrower to Mortgage Borrower under the Franchise Agreement;; and
(iv) promptly use its commercially reasonable judgment in determining whether and when to cause Mortgage Borrower to enforce the performance and observance in all material respects of all of the covenants and agreements required to be performed and/or observed by the franchisor Franchisor.
(d) If Borrower shall cause Mortgage Borrower to enter into a Franchise Agreement, Borrower shall not, without Lender’s prior written consent:
(i) cause or permit Mortgage Borrower to surrender, terminate or cancel such Franchise Agreement;
(ii) cause or permit Mortgage Borrower to reduce or consent to the reduction of the term of such Franchise Agreement;
(iii) cause or permit Mortgage Borrower to increase or consent to the increase of the amount of any charges under the such Franchise Agreement; andor
(viv) exercise all cause or permit Mortgage Borrower to otherwise modify, change, supplement, alter or amend, or waive or release any of its rights of renewals or extension of the and remedies under, such Franchise Agreement (and Borrower hereby appoints Lender as its attorney-in-fact to exercise such options in the name of and on behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest)any material respect.
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Samples: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Franchise Provisions. (a) Lender acknowledges and agrees that, as of the Closing Date, (i) Borrower is indirectly owned in whole by Wyndham; (ii) the Property is operated as a “Wyndham” or “Summerfield Suites” hotel and is not subject to a franchise agreement or other agreement in connection with such operation other than the Management Agreement. Borrower shall obtain the approval of Lender, which approval shall not be unreasonably withheld or delayed by Lender, before entering into any franchise agreement (the “Franchise Agreement”) with any franchisor (the “Franchisor”) Franchisor that provides for, or permits, the operation of the Property under such Franchisor’s brand or “flag”. .” Any Franchise Agreement must include, among other things, rights in the Franchisor’s reservation system and a term of not less than the remaining term of the LoanTerm. Borrower shall deliver to Lender any such Franchise Agreement for Lender’s review and approval. Lender expressly acknowledges and agrees that Hilton Inns, Inc. is an acceptable Franchisor and that certain Franchise License Agreement, dated as of June 23, 2005 as amended between Hilton Inns, Inc. and Operating Tenant relating to the Property is an acceptable Franchise Agreement.
(b) If Borrower shall enter into any Franchise Agreement, Lender shall receive within thirty (30) days following the execution of such Franchise Agreement a comfort letter from the franchisor identified in the Franchise Agreement (the “Franchisor, ”) in which Franchisor shall agree (i) that Lender shall have the right, but not the obligation, to cure any defaults under the Franchise Agreement, ; (ii) to give Lender written notice of, and a reasonable time to cure, any default of Borrower under the Franchise Agreement; (iii) not to assert against Lender any defaults which that by their nature are personal to Borrower and are not curable by Lender; (iv) to allow Lender to change managers of the Property; (v) that, if Lender or its affiliate shall acquire title to the Property, Lender or its affiliate shall have an option to succeed to the interest of Borrower under the Franchise Agreement (or to be granted a new Franchise Agreement agreement on the same terms as the Franchise Agreement) without payment of any fees to Franchisor (other than nominal, processing fees); (vi) that the Franchise Agreement will shall remain in effect during any foreclosure proceedings by Lender provided Lender cures all monetary defaults under the Franchise Agreement; (vii) not to modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term term without the consent of Lender; and (viii) that if Lender or its Affiliate affiliate succeeds to Borrower’s interest under the Franchise Agreement, Lender may assign its rights therein to any entity which acquires the Property from Lender or its Affiliate affiliate (subject to Franchisor’s reasonable approval). The foregoing to the contrary notwithstanding, Lender will not unreasonably withhold approval of Franchisor’s standard form of “comfort letter”” addressing those matters set forth above.
(c) Borrower shall not, and Borrower shall not permit Operating Tenant or any Affiliate to, modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term without the consent of Lender, such consent not to be unreasonably withheld or delayed; provided that, in connection with a cancellation, surrender or termination, such Franchise Agreement shall be replaced with a substitute franchise agreement reasonably approved by Lender or such other arrangement for the operation of the Property, reasonably approved by Lender. Borrower shall promptly deliver to Lender copies of any notices of default sent or received by or on behalf of Borrower Borrower, Operating Tenant or any of its Affiliates under the Franchise Agreement.
(d) Borrower shall at all times that the Debt is outstanding cause the hotel located on the Property to be operated as (i) a “Wyndham” or a “Summerfield Suites” hotel (or in the name of any successor entity), or (ii) a hotel franchise of a first class, reputable hotel franchise reasonably acceptable to Lender pursuant to a franchise agreement and management agreement reasonably acceptable to Lender.
(e) Borrower shall:
(i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Lender of any default under the Franchise Agreement of which it is aware;
(iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement;
(iv) promptly enforce the performance and observance in all material respects of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement; and
(v) exercise all rights of renewals or extension of the Franchise Agreement (and Borrower hereby appoints Lender as its attorney-in-fact to exercise such options in the name of and on behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest).
Appears in 1 contract
Samples: Loan Agreement (Eagle Hospitality Properties Trust, Inc.)
Franchise Provisions. (a) Lender acknowledges and agrees that, as of the Closing Date, (i) Borrower is indirectly owned in whole by Wyndham; (ii) the Property is operated as a “Wyndham” or “Summerfield Suites” hotel and is not subject to a franchise agreement or other agreement in connection with such operation other than the Management Agreement. Borrower shall obtain the approval of Lender, which approval shall not be unreasonably withheld or delayed by Lender, before entering into any franchise agreement (the “Franchise Agreement”) with any franchisor (the “Franchisor”) that provides for, or permits, the operation of the Property under such Franchisor’s brand or “flag”. Any Franchise Agreement must include, among other things, rights in the Franchisor’s reservation system and a term of not less than the remaining term of the Loan. Borrower shall deliver to Lender any such Franchise Agreement for Lender’s review and approval.
(b) If Borrower shall enter into any Franchise Agreement, Lender shall receive within thirty (30) days following the execution of such Franchise Agreement a comfort letter from the Franchisor, in which Franchisor shall agree (i) that Lender shall have the right, but not the obligation, to cure any defaults under the Franchise Agreement, (ii) to give Lender written notice of, and a reasonable time to cure, any default of Borrower under the Franchise Agreement; (iii) not to assert against Lender any defaults which by their nature are personal to Borrower and are not curable by Lender; (iv) to allow Lender to change managers of the Property; (v) that, if Lender or its affiliate shall acquire title to the Property, Lender or its affiliate shall have an option to succeed to the interest of Borrower under the Franchise Agreement (or to be granted a new Franchise Agreement on the same terms as the Franchise Agreement) without payment of any fees to Franchisor (other than nominal, processing fees); (vi) that the Franchise Agreement will remain in effect during any foreclosure proceedings by Lender provided Lender cures all monetary defaults under the Franchise Agreement; (vii) not to modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term without the consent of Lender; and (viii) that if Lender or its Affiliate succeeds to Borrower’s interest under the Franchise Agreement, Lender may assign its rights therein to any entity which acquires the Property from Lender or its Affiliate (subject to Franchisor’s reasonable approval). The foregoing to the contrary notwithstanding, Lender will not unreasonably withhold approval of Franchisor’s standard form of “comfort letter”.
(c) Borrower shall not, and Borrower shall not permit any Affiliate to, modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term without the consent of Lender, such consent not to be unreasonably withheld or delayed; provided that, in connection with a cancellation, surrender or termination, such Franchise Agreement shall be replaced with a substitute franchise agreement reasonably approved by Lender or such other arrangement for the operation of the Property, reasonably approved by Lender. Borrower shall promptly deliver to Lender copies of any notices of default sent or received by or on behalf of Borrower or any of its Affiliates under the Franchise Agreement.
(d) Borrower shall at all times that the Debt is outstanding cause the hotel located on the Property to be operated as (i) a “Wyndham” or a “Summerfield Suites” hotel (or in the name of any successor entity), or (ii) a hotel franchise of a first class, reputable hotel franchise reasonably acceptable to Lender pursuant to a franchise agreement and management agreement reasonably acceptable to Lender.
(e) Borrower shall:
(i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Lender of any default under the Franchise Agreement of which it is aware;
(iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement;
(iv) promptly enforce the performance and observance in all material respects of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement; and
(v) exercise all rights of renewals or extension of the Franchise Agreement (and Borrower hereby appoints Lender as its attorney-in-fact to exercise such options in the name of and on behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest).
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Franchise Provisions. (a) Lender acknowledges Each Borrower and agrees thatIDOT Guarantor, as of the Closing Dateapplicable, (i) Borrower is indirectly owned in whole by Wyndham; (ii) the Property is operated as a “Wyndham” or “Summerfield Suites” hotel and is not subject to a franchise agreement or other agreement in connection with such operation other than the Management Agreement. Borrower shall obtain the approval of Lender, which approval shall not be unreasonably withheld or delayed by Lender, before entering into any franchise agreement (the “Franchise Agreement”) unless such Franchise Agreement is with any franchisor (the “Franchisor”) Qualified Franchisor that provides for, or permits, the operation of the any Individual Property under such Franchisor’s brand or “flag”. Any Franchise Agreement must include, among other things, rights in the Franchisor’s reservation system and a term of not less which expires no earlier than the remaining term of the LoanMaturity Date. Borrower or IDOT Guarantor, as applicable, shall deliver to Lender any such Franchise Agreement for Lender’s review including the then prevailing form of a Qualified Franchisor. Lender expressly acknowledges and approvalagrees that: (a) with respect to the Portsmouth Property that certain Relicensing Franchise Agreement dated as of December 19, 2003 between Marriott International, Inc. and HHC TRS Portsmouth LLC, a Delaware limited liability company, and (b) with respect to the Baltimore Property that certain Hilton Garden Inn License Agreement dated as of December 12, 2000 between Hilton Inns, Inc. and HHC TRS OP LLC, a Delaware limited liability company are acceptable Franchise Agreements.
(b) If any Borrower or IDOT Guarantor, as applicable, shall enter into any Franchise Agreement, Lender shall receive within thirty (30) days following the execution of such Franchise Agreement a comfort letter from the Franchisor identified in the Franchise Agreement (the “Franchisor”), in which Franchisor shall agree (i) that Lender shall have the right, but not the obligation, to cure any defaults under the Franchise Agreement, ; (ii) to give Lender written notice of, and a reasonable time the opportunity to curecure during the same period given to Borrower or IDOT Guarantor, as applicable, any default of such Borrower under the Franchise Agreement; (iii) not to assert against Lender any defaults which by their nature are personal to such Borrower or IDOT Guarantor, as applicable, and are not curable by Lender; (iv) to allow Lender to change managers of the any Individual Property, subject to such Franchisor’s consent; (v) that, if Lender or its affiliate Affiliate shall acquire title to the any Individual Property, Lender or its affiliate Affiliate shall have an option to succeed to the interest of such Borrower or IDOT Guarantor, as applicable, under the Franchise Agreement (or to be granted a new Franchise Agreement on the current form of Franchisor’s franchise agreement or on the same terms as the Franchise Agreement) without payment of any fees to Franchisor (other than nominal, processing fees); (vi) that the Franchise Agreement will remain in effect during any foreclosure proceedings by Lender provided Lender cures all monetary defaults under the Franchise Agreement; (vii) not to modify, cancel, surrender or otherwise terminate the Franchise Agreement during the Term without the consent of Lender; and (viii) that if Lender or its Affiliate succeeds to Borrower’s interest or IDOT Guarantor’s interest, as applicable, under the Franchise Agreement, Lender may assign its rights therein to any entity which acquires the any Individual Property from Lender or its Affiliate affiliate (subject to Franchisor’s reasonable approval). The Notwithstanding any of the foregoing to the contrary notwithstandingcontrary, Lender will not unreasonably withhold approval of Franchisor’s standard form of “comfort letter”” addressing those matters set forth above.
(c) Borrower shall not, and Borrower shall not permit any Affiliate to, modify, cancel, surrender or Except as otherwise terminate the Franchise Agreement during the Term without the consent of Lender, such consent not to may be unreasonably withheld or delayed; provided that, in connection with a cancellation, surrender or termination, such Franchise Agreement shall be replaced with a substitute franchise agreement reasonably approved by Lender or such other arrangement for the operation of the Property, reasonably approved by Lender. Borrower shall promptly deliver to Lender copies of any notices of default sent or received by or on behalf of Borrower or any of its Affiliates under the Franchise Agreement.
(d) Borrower shall at all times that the Debt is outstanding cause the hotel located on the Property to be operated as (i) a “Wyndham” or a “Summerfield Suites” hotel (or in the name of any successor entity), or (ii) a hotel franchise of a first class, reputable hotel franchise reasonably acceptable to Lender permitted pursuant to a franchise agreement and management agreement reasonably acceptable to Lender.
(e) Borrower shall:
(i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Lender of any default under the Franchise Agreement of which it is aware;
(iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement;
(iv) promptly enforce the performance and observance in all material respects of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement; and
(v) exercise all rights of renewals or extension of the Franchise Agreement (and Borrower hereby appoints Lender as its attorney-in-fact to exercise such options in the name of and on behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest).Section 5.1.22
Appears in 1 contract
