Common use of Lender Approvals Clause in Contracts

Lender Approvals. Landlord shall, by such date as is necessary, without employing overtime work or other exigent or extraordinary means, to enable construction of the Addition to be properly completed by the applicable Estimated Completion Date, have sought and obtained a Secured Loan to serve as a source of construction financing for the construction of the Addition, on such terms and conditions as are acceptable to Landlord in its sole and absolute discre tion. Landlord agrees that, in connection with its efforts to obtain such construction financing: (i) Landlord shall offer, and be willing, to subject its interest in the Addition, the land on which it is to be constructed, and this Lease (as it applies to such land and Addition) to the liens and security interests of such construction lender (subject to any prior rights or interests therein or thereto, and any rights of consent or approval, of any Secured Lender); and (ii) if the only reason Landlord is unable to obtain from third party sources suitable construction financing acceptable to Landlord is that the proposed construction lender requires that it be provided with one or more guaranties of any kind (whether guaranties of payment, of completion, of carry costs, or otherwise; collectively, "LENDER-REQUIRED GUARANTIES"), Landlord shall so notify Tenant and give Tenant a reasonable opportunity (but no longer than 15 days after such notice from Landlord to Tenant) to provide to such prospective construction lender, at Tenant's sole cost and liability (and at no cost or liability to Landlord), all of such Lender-Required Guaranties (which may be guaranties from Tenant, any Affiliate of Tenant or any other Person) that would satisfy the proposed construction lender and cause it to be willing to provide construction financing to Landlord on terms and conditions acceptable to Landlord, and if Tenant for any reason refuses or fails to provide such Lender-Required Guaranties within the time period so provided therefor by Landlord, this condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall have no obligation of any kind with respect to such Addition, but if there are reasons for Landlord's inability to obtain acceptable construction financing other than or in addition to a requirement for Lender- Required Guaranties, Landlord shall so notify Tenant, in which case Tenant shall have 30 days from its receipt of such notice to deliver to Landlord a written notice (a "LAND EXERCISE NOTICE") in which Tenant clearly, irrevocably and unconditionally (i) agrees to lease from Landlord hereunder only the land component of the Parcel or Parcels on which the Addition would have been constructed, for an annual Fixed Rent of $1.00 per year, and forever releases Landlord from any and all obligations of any and every kind whatsoever with respect to such Addition other than to lease to Tenant such land on the terms and conditions set out herein, (ii) promises promptly to commence, and diligently to prosecute and complete, the construction of the Addition, lien-free and in accordance with all CC&R's, all applicable laws, codes and ordinances, and all provisions of this Lease, all at Tenant's sole cost, liability and risk, and (iii) promises to pay to Landlord, as compensation for remaining ready and willing to perform its obligations hereunder and for any work, activities, time or effort it may theretofore have expended in connection herewith an amount in cash (the "LANDLORD COMPENSATION AMOUNT") equal to five percent (5%) of the Total Construc tion Cost for such Addition (and to certify the amount of such Total Construction Cost under oath to Landlord, and to allow Landlord to inspect, copy and audit Tenant's books and records relating thereto), such amount to be paid to Landlord in five substantially equal annual installments as follows: together with Tenant's delivery to Landlord of the Land Exercise Notice, Tenant shall pay Landlord an amount in cash equal to 20% of the amount Tenant estimates in good faith will equal the total Landlord Compensation Amount for such Addition; and, on each of the next four anniversa xxxx of that date, Tenant shall pay Landlord an amount equal to one-fourth (1/4) of the amount by which the total Landlord Compensation Amount for such Addition exceeds the amount Tenant paid Landlord on account thereof when Tenant delivered its Land Exercise Notice relating thereto. All of Tenant's obligations, undertakings and liabilities hereunder and with respect hereto, and as provided for herein, shall constitute obligations of Tenant to Landlord under this Lease. If Tenant fails for any reason whatsoever to deliver such a Land Exercise Notice to Landlord within such 30-day period, the condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall not have any obligation or liability of any kind (including, without limitation, any obligation to lease the Land to Tenant) with respect to or under this Lease.

Lender Approvals. Landlord shallWith respect to each Contributed Property, prior to the applicable Closing Date: (i) With respect to Contributed Properties that are not the subject of a Refinancing, the Parties shall use their respective commercially reasonable efforts to obtain, on terms reasonably acceptable to the Parties, approval from the Lender for the contribution of the Contributed Property or the Contributed Interests, as the case may be, contemplated by such date as is necessarythis Agreement and the applicable Contribution Agreement, and any changes in property management and/or guarantors which may be required by the Lender or the Loan Documents in connection therewith (the “Lender Approval”). The “Lender Approval” shall be deemed to include, if and to the extent applicable (a) the satisfactory completion by the Lender of all diligence investigations, inspections and tests, and (b) the full negotiation and final approval for signature of the Lender Approval Documents by ATA Holdings, the borrower and, if applicable, the guarantor under the Loan Documents, the Lender and any other entities required by the Lender to be a party to the Lender Approval Documents. (ii) With respect to Contributed Properties that are the subject of a Refinancing, the Parties shall use their respective commercially reasonable efforts to obtain, on terms reasonably acceptable to the Parties, including, without employing overtime work limitation the principal balance thereof which may not exceed the principal balance of the related existing loan for such Contributed Property, a new loan from the Lender or another lender that will acknowledge or permit the contribution of the Contributed Property or the Contributed Interests, as the case may be, contemplated by this Agreement and the applicable Contribution Agreement, and any changes in property management and/or guarantors which may be required by the Lender or the Loan Documents in connection therewith. The “Refinancing” shall be deemed to include, if and to the extent applicable (a) the satisfactory completion by the Lender of all diligence investigations, inspections and tests, and (b) the full negotiation and final approval for signature of new loan documents by the borrower and, if applicable, the guarantor, the Lender and any other exigent entities required by the Lender to be a party to the new loan documents. It is acknowledged and agreed by the Parties that, as of the date hereof, each of the Contributed Properties listed on Schedule 7.4(c)(ii) hereof is subject to a Refinancing. It also is agreed by the Parties that if the Parties are unable to obtain a Lender Approval for any other Contributed Property on or extraordinary meansbefore the Final Closing Outside Date, and such Contributed Property does not become an Excluded Property, the Parties shall use commercially reasonable efforts to refinance such Contributed Property in accordance with the terms hereof. (iii) ELRM has applied to the applicable lender for the Lender Approval or for the Refinancing, and the Parties shall use their respective commercially reasonable efforts to obtain the Lender Approval or Refinancing from the applicable lender prior to the applicable Closing Date. The Parties agree to cooperate and to take all reasonable action, or to cause others to cooperate and to take all reasonable action, to enable construction facilitate the receipt of the Addition Lender Approval or Refinancing. Notwithstanding anything herein to the contrary, the ATA Parties shall be properly completed by solely responsible to pay to the applicable Estimated Completion Date, have sought Lender any and obtained a Secured all Loan to serve as a source of construction financing for the construction of the Addition, on such terms and conditions as are acceptable to Landlord in its sole and absolute discre tion. Landlord agrees that, Assumption Costs required in connection with the Lender Approval and fees or costs associated with a Refinancing. So long as a Party complies with its obligations under this Section 7.4(c), in no event shall such Party have any liability for its failure to obtain the Lender Approval or a Refinancing. The Parties shall execute and deliver at such Closing, or use their respective commercially reasonable efforts to obtain such construction financing: (i) Landlord shall offer, and be willing, to subject its interest in the Addition, the land on which it is cause to be constructedexecuted and delivered, and this Lease (as it applies to such land and Addition) to the liens and security interests of such construction lender (subject to any prior rights or interests therein or thereto, and any rights of consent or approval, of any Secured Lender); and (ii) if the only reason Landlord is unable to obtain from third party sources suitable construction financing acceptable to Landlord is that the proposed construction lender requires that it be provided with one or more guaranties of any kind (whether guaranties of payment, of completion, of carry costs, or otherwise; collectively, "LENDER-REQUIRED GUARANTIES"), Landlord shall so notify Tenant and give Tenant a reasonable opportunity (but no longer than 15 days after such notice from Landlord to Tenant) to provide to such prospective construction lender, at Tenant's sole cost and liability (and at no cost or liability to Landlord), all of such Lender-Required Guaranties (which may be guaranties from Tenant, any Affiliate of Tenant or any other Person) that would satisfy the proposed construction lender and cause it to be willing to provide construction financing to Landlord on terms and conditions acceptable to Landlord, and if Tenant for any reason refuses or fails to provide such Lender-Required Guaranties within the time period so provided therefor by Landlord, this condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall have no obligation of any kind with respect to such Addition, but if there are reasons for Landlord's inability to obtain acceptable construction financing other than or in addition to a requirement for Lender- Required Guaranties, Landlord shall so notify Tenant, in which case Tenant shall have 30 days from its receipt of such notice to deliver to Landlord a written notice (a "LAND EXERCISE NOTICE") in which Tenant clearly, irrevocably and unconditionally (i) agrees to lease from Landlord hereunder only the land component of the Parcel or Parcels on which the Addition would have been constructed, for an annual Fixed Rent of $1.00 per year, and forever releases Landlord from any and all obligations of any consent and every kind whatsoever with respect to such Addition other than to lease to Tenant such land on approval documents and agreements required by the terms and conditions set out herein, (ii) promises promptly to commence, and diligently to prosecute and complete, the construction of the Addition, lien-free and in accordance with all CC&R's, all applicable laws, codes and ordinances, and all provisions of this Lease, all at Tenant's sole cost, liability and risk, and (iii) promises to pay to Landlord, as compensation for remaining ready and willing to perform its obligations hereunder and for any work, activities, time or effort it may theretofore have expended Lender in connection herewith an amount with the Lender Approval or Refinancing, in cash form and content reasonably satisfactory to the Parties (the "LANDLORD COMPENSATION AMOUNT") equal to five percent (5%) of the Total Construc tion Cost for such Addition (and to certify the amount of such Total Construction Cost under oath to Landlord, and to allow Landlord to inspect, copy and audit Tenant's books and records relating thereto“Lender Approval Documents”), such amount to be paid to Landlord in five substantially equal annual installments as follows: together with Tenant's delivery to Landlord of the Land Exercise Notice, Tenant shall pay Landlord an amount in cash equal to 20% of the amount Tenant estimates in good faith will equal the total Landlord Compensation Amount for such Addition; and, on each of the next four anniversa xxxx of that date, Tenant shall pay Landlord an amount equal to one-fourth (1/4) of the amount by which the total Landlord Compensation Amount for such Addition exceeds the amount Tenant paid Landlord on account thereof when Tenant delivered its Land Exercise Notice relating thereto. All of Tenant's obligations, undertakings and liabilities hereunder and with respect hereto, and as provided for herein, shall constitute obligations of Tenant to Landlord under this Lease. If Tenant fails for any reason whatsoever to deliver such a Land Exercise Notice to Landlord within such 30-day period, the condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall not have any obligation or liability of any kind (including, without limitation, any obligation to lease the Land to Tenant) with respect to or under this Lease.

Lender Approvals. Landlord shall, by such date as is necessary, without employing overtime work or other exigent or extraordinary means, to enable construction of the relevant Addition to be properly completed by the applicable Estimated Completion Date, have sought and obtained a Secured Loan to serve as a source of construction financing for the construction of the Addition, on such terms and conditions as are acceptable to Landlord in its sole and absolute discre tiondiscretion. Landlord agrees that, in connection with its efforts to obtain such construction financing: (i) Landlord shall offer, and be willing, to subject its interest in the Addition, the land on which it is to be constructed, and this Lease (as it applies to such land and Addition) to the liens and security interests of such construction lender (subject to any prior rights or interests therein or thereto, and any rights of consent or approval, of any Secured Lender); and (ii) if the only reason Landlord is unable to obtain from third party sources suitable construction financing acceptable to Landlord is that the proposed construction lender requires that it be provided with one or more guaranties of any kind (whether guaranties of payment, of completion, of carry costs, or otherwise; collectively, "LENDER-REQUIRED GUARANTIES"), Landlord Lender shall so notify Tenant and give Tenant a reasonable opportunity (but no longer than 15 days after such notice from Landlord to Tenant) to provide to such prospective construction lender, at Tenant's sole cost and liability (and at no cost or liability to Landlord), all of such Lender-Required Guaranties (which may be guaranties from Tenant, from Guarantor, from any other Affiliate of Tenant either of them, or any other Person) that would satisfy the proposed construction lender and cause it to be willing to provide construction financing to Landlord on terms and conditions acceptable to Landlord, and if Tenant for any reason refuses or fails to provide such Lender-Required Guaranties within the time period so provided therefor by Landlord, this condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall have no obligation of any kind with respect to such AdditionExpansion Option, but if there are reasons for Landlord's inability to obtain acceptable construction financing other than or in addition to a requirement for Lender- Lender-Required Guaranties, Landlord shall so notify Tenant, in which case Tenant shall have 30 days from its receipt of such notice to deliver to Landlord a written notice (a "LAND EXERCISE NOTICE") in which Tenant clearly, irrevocably and unconditionally (i) agrees modifies its Exercise Notice so as to lease provide for Tenant's leasing from Landlord hereunder only the land component of the Parcel or Parcels on which the Addition that was the subject of such Exercise Notice would have been constructed, for an annual Fixed Rent of $90,000.00 per year (in the case of either Parcel B Addition) or $30,000.00 per year (in the case of the Office Facility Addition) if such Option was exercised after the seventh Lease Year (the Fixed Rent shall be $1.00 per yearyear for the land component of any Parcel as to which such Option was exercised before the end of the seventh Lease Year), and forever releases Landlord from any and all obligations of any and every kind whatsoever with respect to such Addition Option other than to lease to Tenant such land on the terms and conditions set out herein, (ii) promises promptly to commence, and diligently to prosecute and complete, the construction of the AdditionAddition which had been the subject of such Exercise Notice, lien-free and in accordance with all CC&R's, all applicable laws, codes and ordinances, and all provisions of this Lease, all at Tenant's sole cost, liability and risk, and (iii) promises to pay to Landlord, as compensation for remaining ready and willing to perform its obligations hereunder concerning such Option and for any work, activities, time or effort it may theretofore have expended in connection herewith with such Exercise Notice, an amount in cash (the "LANDLORD COMPENSATION AMOUNT") equal to five percent (5%) of the Total Construc tion Construction Cost for such Addition (and to certify the amount of such Total Construction Cost under oath to Landlord, and to allow Landlord to inspect, copy and audit Tenant's books and records relating thereto), such amount to be paid to Landlord in five substantially equal annual installments as follows: together with Tenant's delivery to Landlord of the Land Exercise Notice, Tenant shall pay Landlord an amount in cash equal to 20% of the amount Tenant estimates in good faith will equal the total Landlord Compensation Amount for such Addition; and, on each of the next four anniversa xxxx anniversaries of that date, Tenant shall pay Landlord an amount equal to one-fourth (1/4) of the amount by which the total Landlord Compensation Amount for such Addition exceeds the amount Tenant paid Landlord on account thereof when Tenant delivered its Land Exercise Notice relating thereto. All of Tenant's obligations, undertakings and liabilities hereunder under and with respect heretoto, and as provided for hereinin, any such Land Exercise Notice shall constitute obligations of Tenant to Landlord under this Lease, and also "Obligations" guarantied by Guarantor under the Guaranty. If Tenant fails for any reason whatsoever to deliver such a Land Exercise Notice to Landlord within such 30-day period, the condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall not have any obligation or liability of any kind (including, without limitation, any obligation to lease the Land such land to TenantTenant or to construct such Addition) with respect to or under this Leasesuch Expansion Option.

Lender Approvals. Landlord shall(a) The Premises are subject to and encumbered by the terms of the documents evidencing and securing the Fleet Loan. This Agreement and all of the terms herein are subject to Lender's approval of same. Owner shall use commercially reasonable efforts to obtain Lender's consent to this Agreement; however, if despite such efforts, Lender refuses to consent to this Agreement, this Agreement shall be terminated upon notice of such refusal to Operator and neither party shall have any further rights, duties or obligations hereunder except to the extent such rights, duties or obligations survive the termination hereof, and Owner shall pay to Operator that portion of the Pre-Opening Services Fee and/or Fees and Expenses which are due and payable through the date of such termination, and shall reimburse Operator for all out of pocket expenses incurred through the date of such termination. (b) Operator's rights, entitlements and interests under this Agreement and, if executed, the Lease shall be subject and subordinate to the Fleet Loan and to all other third party financing encumbering the Club and/or the Premises and/or Owner's interests therein. The foregoing subordination of this Agreement and Operator's rights as manager or the Club shall be self-operative and no further instrument shall be required to effect any such subordination; however, Operator, from time to time, within ten (10) days of a written request made by Owner, shall execute an agreement confirming such subordination. Owner, upon written request of Operator, shall use commercially reasonably efforts to obtain a subordination, non-disturbance and attornment agreement (each, an "SNDA") in favor of Operator from each such lender on the lender's then standard form (but which shall provide that any mortgagee or other successor to the interests of Owner under this Agreement shall be obligated to pay to Operator all arrears in Management Fees, Incentive Fees and expense reimbursements as a condition precedent to Operator attorning to such successor), it being acknowledged and agreed by Operator that in the event that any such lender succeeds to the interests of Owner under this Agreement, by virtue of foreclosure, deed in lieu or otherwise, then Operator shall attorn to such date as is necessarysuccessor and such successor (i) shall not be liable for any act or omission of Owner under this Agreement, without employing overtime work nor for any pre-existing defaults by Owner under this Agreement, (ii) shall not be subject to any offset, abatement, defense or other exigent counterclaim accruing prior to such sale or extraordinary meansconveyance to lender, (iii) shall not be bound by any prepayment of monies due and/or payable to enable construction Owner which may be offset against future net revenue of the Addition to Club and (iv) shall be properly completed by the applicable Estimated Completion Date, have sought and obtained a Secured Loan to serve as a source of construction financing liable for the construction performance of the Addition, on other obligations of Owner under this Agreement only during the period such terms and conditions as are acceptable to Landlord in its sole and absolute discre tion. Landlord agrees that, lender shall own the Club. (c) At the request of the Lender and/or any other future mortgagee of the Club and/or in connection with its efforts any proposed mortgage financing, Operator shall, from time to obtain time, amend or modify this Agreement, to the extent requested by Owner or any mortgagee provided that such construction financing: amendment (i) Landlord shall offer, and be willing, to subject its interest in the Addition, the land on which it is to be constructed, and this Lease (as it applies to such land and Addition) to the liens and security interests of such construction lender (subject to does not materially diminish or reduce any prior rights or interests therein or thereto, and any rights remedies of consent or approval, of any Secured Lender); Operator hereunder and (ii) if does not impose obligations upon Operator which are materially more burdensome than the only reason Landlord is unable obligations hereunder. (d) At any time and from time to obtain from third party sources suitable construction financing time, on at least ten (10) days prior written notice, Operator or Owner, upon request to the other, shall execute an estoppel certificate in form acceptable to Landlord is that Owner or Operator, as the proposed construction lender requires that it be provided with one or more guaranties of any kind (whether guaranties of paymentcase may be, of completion, of carry costs, or otherwise; collectively, "LENDER-REQUIRED GUARANTIES"), Landlord shall so notify Tenant and/or Lender and give Tenant a reasonable opportunity (but no longer than 15 days after containing such notice from Landlord to Tenant) to provide to such prospective construction lender, at Tenant's sole cost and liability (and at no cost or liability to Landlord), all of such Lender-Required Guaranties (which statements as may be guaranties from Tenant, any Affiliate of Tenant or any other Person) that would satisfy the proposed construction lender and cause it to be willing to provide construction financing to Landlord on terms and conditions acceptable to Landlord, and if Tenant for any reason refuses or fails to provide such Lender-Required Guaranties within the time period so provided therefor by Landlord, this condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall have no obligation of any kind with respect to such Addition, but if there are reasons for Landlord's inability to obtain acceptable construction financing other than or in addition to a requirement for Lender- Required Guaranties, Landlord shall so notify Tenant, in which case Tenant shall have 30 days from its receipt of such notice to deliver to Landlord a written notice (a "LAND EXERCISE NOTICE") in which Tenant clearly, irrevocably and unconditionally (i) agrees to lease from Landlord hereunder only the land component of the Parcel or Parcels on which the Addition would have been constructed, for an annual Fixed Rent of $1.00 per year, and forever releases Landlord from any and all obligations of any and every kind whatsoever with respect to such Addition other than to lease to Tenant such land on the terms and conditions set out herein, (ii) promises promptly to commence, and diligently to prosecute and complete, the construction of the Addition, lien-free and in accordance with all CC&R's, all applicable laws, codes and ordinances, and all provisions of this Lease, all at Tenant's sole cost, liability and risk, and (iii) promises to pay to Landlord, as compensation for remaining ready and willing to perform its obligations hereunder and for any work, activities, time or effort it may theretofore have expended in connection herewith an amount in cash (the "LANDLORD COMPENSATION AMOUNT") equal to five percent (5%) of the Total Construc tion Cost for such Addition (and to certify the amount of such Total Construction Cost under oath to Landlord, and to allow Landlord to inspect, copy and audit Tenant's books and records relating thereto), such amount to be paid to Landlord in five substantially equal annual installments as follows: together with Tenant's delivery to Landlord of the Land Exercise Notice, Tenant shall pay Landlord an amount in cash equal to 20% of the amount Tenant estimates in good faith will equal the total Landlord Compensation Amount for such Addition; and, on each of the next four anniversa xxxx of that date, Tenant shall pay Landlord an amount equal to one-fourth (1/4) of the amount by which the total Landlord Compensation Amount for such Addition exceeds the amount Tenant paid Landlord on account thereof when Tenant delivered its Land Exercise Notice relating thereto. All of Tenant's obligations, undertakings and liabilities hereunder and with respect hereto, and as provided for herein, shall constitute obligations of Tenant to Landlord under this Lease. If Tenant fails for any reason whatsoever to deliver such a Land Exercise Notice to Landlord within such 30-day period, the condition precedent set out in this SUBSECTION (2) shall be deemed unsatisfied and Landlord shall not have any obligation or liability of any kind (including, without limitation, any obligation to lease the Land to Tenant) with respect to or under this Leasereasonably requested.