Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 3 contracts
Sources: Lease Agreement (CNL Hospitality Properties Inc), Lease Agreement (CNL Hospitality Properties Inc), Lease Agreement (CNL Hospitality Properties Inc)
Management Agreement. Except as otherwise provided below, Tenant (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall not enter into, amend, surrender or modify any the management fees under the Management Agreement with exceed three percent (3%) of the gross income derived from the Property. Pledgor shall cause Mortgage Borrower to (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower to be performed and observed and deliver to Lender a Person that is true copy of each such notice. Pledgor shall cause Mortgage Borrower to not an Affiliated Person as surrender the Management Agreement, consent to Marriott the assignment by the Manager of its interest under the Management Agreement, or Crestline terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing without Landlord's the Lender’s prior written consent, which consent may shall not be given unreasonably, withheld, conditioned or withheld in Landlord's sole but reasonable discretiondelayed. Tenant may from time to time, and in accordance with and subject to In the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) event that the Management Agreement expires or is terminated (without limiting any obligation of Pledgor to obtain Lender’s consent to any termination or modification of the Management Agreement in accordance with the terms and all amounts due from Tenant provisions of this Agreement), Pledgor shall cause Mortgage Borrower to promptly enter into a Replacement Management Agreement with Manager or another Qualified Manager, as applicable. Subject to the Manager rights of Mortgage Lender, if Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower to be performed or observed, then, without limiting the generality of the other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination provisions of this Agreement, and without waiving or releasing Pledgor from any of its obligations hereunder, Pledgor shall permit Lender 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 the Management Agreement on the part of Mortgage Borrower to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, furtherhowever, that Landlord shallLender shall have no such obligation to perform any such action. Pledgor shall cause Lender and any Person designated by Lender to have 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 the Manager shall deliver to Lender a copy of any notice sent to Pledgor or Mortgage Borrower of default under the Management Agreement, if it succeeds such notice shall constitute full protection to Tenant's rights under Lender for any management agreementaction taken or omitted to be taken by Lender in good faith, in reliance thereon. Pledgor shall cause Mortgage Borrower to not, and each shall not permit the Manager to, sub-contract any or all of its management agreement shall so provide, be bound only by responsibilities under the last management agreement or amendment thereto Management Agreement to which it consenteda third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed. Pledgor shall, except in from time to time, use commercially reasonable efforts to obtain from the Manager such certificates of estoppel with respect of any Management Agreement entered into pursuant to Section 14.3(c), compliance by Mortgage Borrower with the terms of the Management Agreement as may be requested by Lender. Any sums expended by Lender pursuant to this paragraph (i) shall notbear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, in Landlord's and its counsel's reasonable opinion, cause the Rent (ii) shall be deemed to fail to qualify as "rents from real property" within the meaning of Section 856(d) constitute a portion of the CodeDebt, it being agreed (iii) shall be secured by Tenant that if Landlord the lien of the Pledge Agreement and its counsel reasonably conclude that the terms other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, Pledgor, upon the request of Lender, shall cause Mortgage Borrower to terminate the Management Agreement will have such and replace the Manager, without penalty or fee, if at any time during the Loan: (a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an effectEvent of Default, then Tenant will modify or (c) there exists a material uncured default (after the terms expiration of the Management Agreement so that all applicable notice and cure periods) by Manager under the Management Agreement. At such time as the Manager may be removed, in a Qualified Manager shall assume management of the reasonable opinion of Landlord and its counsel, does not cause the Rent applicable Individual Property pursuant to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such a Replacement Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 3 contracts
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Management Agreement. Except as otherwise provided belowBorrower shall maintain, Tenant shall not enter intoor cause to be maintained, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement in full force and effect and timely perform all amounts due from Tenant to of Borrower’s obligations thereunder and enforce performance in all material respects of all obligations of the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Leasethereunder, and (b) for except as otherwise permitted by the Loan Documents, not permit the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consentedof the Management Agreement unless the prior written consent of Lender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed delayed. Borrower shall cause the Manager to enter into an assignment and provided further that, except subordination of the management agreement in respect form satisfactory to Lender (the “Subordination of any Management Agreement”). The Subordination of Management Agreement entered into shall assign and subordinate the Manager’s interests in the Property and all fees and other rights of the Manager pursuant to Section 14.3(c), the terms of the Management Agreement shall notto the rights of Lender. Upon an Event of Default, in Landlord's and its counsel's reasonable opinionBorrower shall, at Lender’s request made at any time while such Event of Default continues, terminate, or cause the Rent termination of, the Management Agreement. After the date hereof, Borrower shall not enter into any agreement relating to fail the management of the Property with any party without the express written consent of Lender (which consent shall not be unreasonably withheld to qualify as "rents the extent that such manager is an affiliate of Borrower); provided, however, with respect to a new manager of the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be conditioned upon Borrower delivering (i) a Rating Comfort Letter (if required pursuant to a Pooling and Servicing Agreement from real property" within and after the meaning occurrence of Section 856(da Securitization) with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the sense of clause (ii) of the Codedefined term “Control”) by the REIT), it being agreed by Tenant that if Landlord and its counsel reasonably conclude (ii) evidence satisfactory to Lender (which shall include, at the request of Lender, a legal non-consolidation opinion acceptable to Lender) that the terms single purpose nature and bankruptcy remoteness of Borrower, its shareholders, partners or members, as the case may be, after the engagement of the Management Agreement will have such an effect, then Tenant will modify new manager are in accordance with the terms requirements of the Management Agreement so that Rating Agencies. If at any time Lender consents to the Management Agreementappointment of a new manager, such new manager and Borrower shall, as a condition of Lender’s consent, execute an assignment and subordination of such management agreement in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementform then used by Lender.
Appears in 3 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) The Improvements on the Properties are operated and managed as “U-Store-It” self-service storage facilities (other than the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions of the Management Agreement, which have been approved by Lender including the management fees and any other items set forth therein. The Properties (other than the Properties set forth on Schedule 4.1.31 attached hereto) shall at all times continue to be operated as “U-Store-It” self-service storage facilities or under such other tradename or trademark as may be approved by Lender. In no event shall the management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the applicable Individual Property. Borrower shall, (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement, on the part of Borrower to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement and all amounts due from Tenant (ii) promptly notify Lender of the giving of any notice by Manager to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager other than of its interest under the System feeManagement Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing. Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, in any respect, and any such surrender of the Management Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement, without the prior consent of Lender shall be subordinate void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the Lease and all amounts due from Tenant to Landlord under generality of the Lease, and (b) for the termination thereof upon the termination other provisions of this Agreement, and providedwithout waiving or releasing Borrower from any of its obligations hereunder, furtherLender 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 the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that Landlord shallthe rights of Borrower in, if it succeeds to Tenant's rights and under the Management Agreement shall be kept unimpaired and free from default. Lender and any management agreementPerson designated by Lender shall have, and each 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 the Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management 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. Borrower shall not, and shall not permit the Manager to, sub-contract any or all of its management agreement shall so provide, be bound only by responsibilities under the last management agreement or amendment thereto Management Agreement to which it consenteda third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, conditioned or delayed and provided further thatfrom time to time, except in obtain from the Manager such certificates of estoppel with respect of any Management Agreement entered into pursuant to Section 14.3(c), compliance by Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall notexercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an effectinterest. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, then Tenant will modify (ii) shall be deemed to constitute a portion of the terms Debt, (iii) shall be secured by the lien of the Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement so that and replace Manager, without penalty or fee, if at any time during the Loan:
(a) Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default by Manager under the Management AgreementAgreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, in a Qualifying Manager shall assume management of the reasonable opinion of Landlord and its counsel, does not cause the Rent applicable Individual Property pursuant to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such a Replacement Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 3 contracts
Sources: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Management Agreement. Except as otherwise provided belowBorrower shall maintain, Tenant shall not enter intoor cause to be maintained, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement in full force and effect and timely perform all amounts due from Tenant to of Borrower's obligations thereunder and enforce performance in all material respects of all obligations of the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Leasethereunder, and (b) for except as otherwise permitted by the Loan Documents, not permit the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consentedof the Management Agreement unless the prior written consent of Lender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed delayed. Borrower shall cause the Manager to enter into an assignment and provided further that, except subordination of the management agreement in respect form satisfactory to Lender (the "Subordination of any Management Agreement"). The Subordination of Management Agreement entered into shall assign and subordinate the Manager's interests in the Property and all fees and other rights of the Manager pursuant to Section 14.3(c), the terms of the Management Agreement shall notto the rights of Lender. Upon an Event of Default, in LandlordBorrower shall, at Lender's and its counsel's reasonable opinionrequest made at any time while such Event of Default continues, terminate, or cause the Rent termination of, the Management Agreement. After the date hereof, Borrower shall not enter into any agreement relating to fail the management of the Property with any party without the express written consent of Lender (which consent shall not be unreasonably withheld to qualify as "rents from real property" within the meaning extent that such manager is an affiliate of Section 856(dBorrower); provided, however, with respect to a new manager of the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be conditioned upon Borrower delivering (i) a Rating Comfort Letter with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the sense of clause (ii) of the Codedefined term "Control") by the REIT), it being agreed by Tenant that if Landlord and its counsel reasonably conclude (ii) evidence satisfactory to Lender (which shall include, at the request of Lender, a legal non-consolidation opinion acceptable to Lender) that the terms single purpose nature and bankruptcy remoteness of Borrower, its shareholders, partners or members, as the case may be, after the engagement of the Management Agreement will have such an effect, then Tenant will modify new manager are in accordance with the terms requirements of the Management Agreement so that Rating Agencies. If at any time Lender consents to the Management Agreementappointment of a new manager, such new manager and Borrower shall, as a condition of Lender's consent, execute an assignment and subordination of such management agreement in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementform then used by Lender.
Appears in 3 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) Borrower shall (i) diligently perform, observe and enforce all of the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement and all amounts due from Tenant (ii) promptly notify Lender of the giving of any notice to Borrower of any default by Borrower in the Manager other than performance or observance of any of the System feeterms, shall covenants or conditions of the Management Agreement on the part of Borrower to be subordinate performed and observed and deliver to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination Lender a true copy of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consentedsuch notice. Without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed delayed, Borrower shall not surrender the Management Agreement, consent to the assignment by Manager of its interest under the Management Agreement, or terminate or cancel the Management Agreement or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing, and provided Borrower hereby assigns to Lender as further thatsecurity for the payment of the Debt and for the performance and observance of the terms, except covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement in respect any respect, and any such surrender of the Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement entered into pursuant on the part of Borrower to Section 14.3(c)be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management 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. Borrower shall notify Lender if Manager sub-contracts to a third party or an affiliate any or all of its management responsibilities under the Management Agreement. Borrower shall, from time to time, use its best efforts to obtain from Manager under the Management Agreement such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall notexercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by Lender made at any time within one (1) year of the last day upon which any such an effectoption may be exercised. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, then Tenant will modify shall be deemed to constitute a portion of the terms Debt, shall be secured by the lien of the Security Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, if the Management Agreement so that is terminated pursuant to the Assignment of Management Agreement or for any other reason, then Lender, at its option, may require Borrower to engage, in accordance with the terms and conditions set forth in the Assignment of Management Agreement, a new manager (the “New Manager”) to manage the applicable Individual Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Borrower pursuant to a written management agreement that complies with the terms hereof and of the Assignment of Management Agreement and is otherwise satisfactory to Lender in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the reasonable opinion form then used by Lender. To the extent that such New Manager is an Affiliated Manager, Borrower’s engagement of Landlord and its counsel, does not cause the Rent such New Manager shall be subject to be so characterized under the Code. Landlord shall have no right Borrower’s delivery to enforce Tenant's rights under any such Management Agreement, except Lender of a New Non-Consolidation Opinion with respect to the termination thereof following termination of this Agreementsuch New Manager and new management agreement.
Appears in 3 contracts
Sources: Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.)
Management Agreement. Except as otherwise provided below, Tenant (A) The Borrowers shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Properties in accordance with the Management Agreement. The Borrowers shall (i) perform and subject to observe all of the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective material terms, Management Agreements with its Affiliated Persons or Marriott covenants and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement shall noton the part of each Borrower to be performed and observed, in Landlord's and its counsel's reasonable opinion, cause the Rent (ii) promptly notify Lender of any notice to fail to qualify as "rents from real property" within the meaning of Section 856(d) any of the CodeBorrowers of any material default under the Management Agreement of which it is aware, it being agreed by Tenant that if Landlord and (iii) prior to termination of the Manager in accordance with Section 5.11(C) hereof, Borrower shall renew the Management Agreement prior to each expiration date thereunder in accordance with its counsel reasonably conclude that terms. If any of the terms Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement will on the part of the Borrowers to be performed or observed, then, without limiting Lender's other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing the Borrowers from any of their obligations hereunder or under the Management Agreement, Lender shall have the right, upon prior written notice to the Borrowers, but shall be under no obligation, to pay any sums and to perform any act as may be reasonably appropriate to cause such an effect, then Tenant will modify the terms material conditions of the Management Agreement so that on the part of the Borrowers to be performed or observed.
(B) The Borrowers shall not surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of Rating Confirmations from each of the reasonable opinion Rating Agencies and written consent of Landlord the Lender. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall become the Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Borrowers shall, as a condition of Lender's consent, or with respect to an Acceptable Manager, prior to commencement of its counselduties as Manager, does not cause execute a subordination of management agreement in substantially the Rent form delivered in connection with the closing of the Loan.
(C) Lender shall have the right to require that the Manager be so characterized replaced with a Person chosen by the Borrowers (or, if an Event of Default has occurred and is then continuing, Lender) and reasonably acceptable to Lender, upon the earliest to occur of any one or more of the following events: (i) an Event of Default has occurred and is then continuing, (ii) thirty (30) days after notice from Lender to the Borrowers if Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect (iii) thirty (30) days after notice from Lender to the termination thereof Borrowers if the DSCR is less than 1.0:1 and Lender reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of the Manager rather than factors affecting the Borrowers' industry generally, or (iv) Manager defaults under the Management Agreement, such default is reasonably likely to have a Material Adverse Effect, and such default remains unremedied for thirty (30) days following termination of this Agreementwritten notice to Manager.
Appears in 2 contracts
Sources: Loan and Security Agreement (Global Signal Inc), Loan and Security Agreement (Global Signal Inc)
Management Agreement. Except as otherwise provided below(a) The Properties are currently self-managed by Mortgage Borrower. In the event that the Improvements on each Individual Property are operated under the terms and conditions of a Management Agreement, Tenant the provisions of this Section 5.1.18 shall apply. Borrower shall not enter intopermit any Mortgage Borrower Entity to retain a manager to manage any Individual Property unless such manager is a Qualified Manager and has entered into a Management Agreement and an Agreement Regarding Management Agreement, amendeach in form and substance, surrender reasonably acceptable to Lender. All management fees payable pursuant to the Management Agreements shall be market fees similar to those payable to managers of properties of a similar type and quality pursuant to arm’s-length management agreements, taking into account differences in the quality or modify level of service provided; provided, however, that if TSP or an Affiliate of TSP is employed as Manager of the Properties, such fees payable to TSP or such Affiliate, as the case may be, shall be deemed to be market and arm’s-length. Borrower shall cause Mortgage Borrower to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreements on the part of Mortgage Borrower to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower under the Management Agreements and (ii) promptly notify Lender of the giving of any notice to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of any Management Agreement on the part of Mortgage Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not cause or permit Mortgage Borrower to surrender any Management Agreement, consent to the assignment by Manager of its interest under any Management Agreement, or terminate or cancel any Management Agreement or, in any respect that would have a Material Adverse Effect, modify, change, supplement, alter or amend any Management Agreement, either orally or in writing. Notwithstanding the foregoing, Borrower shall be entitled to cause or permit Mortgage Borrower to enforce and terminate any Management Agreement in accordance with the terms thereof; provided, however, that if the Management Agreement for any Individual Property is terminated, Borrower shall cause the applicable Mortgage Borrower Entity to simultaneously enter into a Person that is not an Affiliated Person replacement Management Agreement for such Individual Property. Subject to (x) the rights of Mortgage Lender pursuant to the terms and conditions of the Mortgage Loan Documents and (y) the rights of Mezzanine A Lender pursuant to the terms and conditions of the Mezzanine A Loan Documents, if Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any Management Agreement on the part of Mortgage Borrower to be performed or observed, and such default shall continue beyond the expiration of any applicable grace or cure period, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 to Marriott or Crestline without Landlord's prior written consent, which consent may be given appropriate to cause all the terms, covenants and conditions of such Management Agreement on the part of Mortgage Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Management Agreement shall be kept unimpaired and free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon any Individual Property at any time and from time to time while an uncured Event of Default exists for the purpose of taking any such action. If the Manager under any Management Agreement shall deliver to Lender a copy of any notice sent to Borrower or Mortgage Borrower of default under such Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon. Tenant may Borrower shall notify Lender if the Manager sub-contracts to a third party any or all of its management responsibilities under any Management Agreement. Borrower shall, from time to time, use its best efforts (or commercially reasonable efforts, at any time when the Manager under any Management Agreement is not an Affiliate of Borrower, Mortgage Borrower, any Principal, Guarantor or TSP) to obtain from the Manager under such Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Manager with the terms of such Management Agreement as may be reasonably requested by Lender. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Management Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised. Any sums expended by Lender pursuant to this Section 5.1.18(a) shall bear interest at the Default Rate from the date which is ten (10) Business Days after the date Lender first makes written demand upon Borrower for reimbursement of such cost to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be due and payable promptly upon demand by Lender therefor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to terminate any Management Agreement and replace the Manager (so long as such termination and/or replacement is not prohibited under the Mortgage Loan Documents or the Mezzanine A Loan Documents), without penalty or fee, if at any time during the Loan: (i) there exists an uncured Event of Default, (ii) there exists a default by Manager (other than TSP or any other Affiliated Manager) under such Management Agreement, which default shall have continued beyond the expiration of any applicable grace or cure period, (iii) the Manager shall become insolvent or a debtor in accordance any bankruptcy or insolvency proceeding, or (iv) the Maturity Date occurs and the Loan is not paid in full. At such time as the Manager is removed as the Manager with respect to any Individual Property, a Qualified Manager shall assume management of such Individual Property pursuant to a replacement Management Agreement, and shall receive a property management fee not to exceed then current market rates for managers of properties of a similar type and quality pursuant to arm’s length management agreements and taking into account differences in the quality or level of service provided; provided, however, that (A) if a Securitization has occurred, Lender shall receive written confirmation from the Rating Agencies that management of such Individual Property by such Qualified Manager will not result in a downgrade, withdrawal or qualification of the initial, or, if higher, the then current ratings issued in connection with such Securitization, and (B) if a Securitization has not occurred, such Qualified Manager shall be subject to the Owner Agreementapproval of Lender, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant such approval not to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned delayed or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementconditioned.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Management Agreement. Except as otherwise provided below, Tenant shall not enter intonot, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given amend or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to modify the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation provisions of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and which provide (i) that all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord (provided that, as long as no Event of Default has occurred and is continuing, Tenant may pay amounts due the Manager under the LeaseManagement Agreement), (ii) for operation of the Leased Property under the "Summerfield" name, (iii) that the Manager and their Affiliated Persons are prohibited from operating, managing or franchising another Summerfield Suites hotel within the designated area on Exhibit C and (biv) for the termination thereof thereof, at Landlord's option, upon the termination of this Agreement. Tenant shall not take any action, and grant any consent or permit any action under the Management Agreement which might have a material adverse effect on Landlord, without the prior written consent of Landlord; provided, furtherhowever, that Landlord shall, if it succeeds to TenantLandlord's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except required in respect connection with any assignment of any Management Agreement entered into pursuant to Section 14.3(c), the terms of Manager's rights under the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d(x) any Affiliated Person of the CodeManager having the full power, it being agreed right and authority to provide all services and organizational expertise as contemplated and required by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms or (y) any Person who acquires all or substantially all of the Management Agreement so management contracts of the Manager, provided that, in either such case, the Leased Property will retain the right to use the "Summerfield" name. In the event of an assignment pursuant to clause (y) preceding, provided that the successor Manager (i) assumes, in writing all obligations of the Manager under the Management Agreement, in and (ii) has a Tangible Net Worth, as of the reasonable opinion date of Landlord and its counselassignment, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect equal to the termination thereof following termination greater of the Tangible Net Worth of the Manager as of the date of this Agreement, and the Tangible Net Worth of the Manager as of the date of such assignment, the Manager shall be released from all liabilities arising under the Management Agreement from and after the effective date of such assignment. Tenant shall not agree to any change in the Manager (except as provided in the preceding sentences), to any change in the Management Agreement (except as provided in the preceding sentences), terminate the Management Agreement or permit the Manager to assign the Management Agreement (except as provided in the preceding sentences) without the prior written approval of Landlord in each instance; provided, however, that the Manager may grant a security interest in its right to receive payments under the Management Agreement without Landlord's prior written approval.
Appears in 2 contracts
Sources: Lease Agreement (Hospitality Properties Trust), Master Lease Agreement (Hospitality Properties Trust)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that The Issuer shall, and shall cause the Asset Entities to, (i) perform and observe all of the material terms, covenants and conditions of the Management Agreement on the part of each Asset Entity to be performed and all amounts due from Tenant observed and (ii) promptly notify the Indenture Trustee, the Back-Up Manager and the Servicer of any notice to any of the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord Asset Entities of any material default under the LeaseManagement Agreement of which it has Knowledge. If any Asset Entity shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of such Asset Entity to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Base Indenture or the other Transaction Documents, and without waiving or releasing such Asset Entity from any of its obligations hereunder or under the Management Agreement, the Issuer grants the Indenture Trustee or the Servicer on its behalf the right, upon prior written notice to such Asset Entity, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement on the part of such Asset Entity to be performed or observed; provided that neither the Indenture Trustee nor the Servicer will be under any obligation to pay such sums or perform such acts.
(b) for The Issuer shall not permit the termination thereof upon Asset Entities to surrender, terminate, cancel, or modify (other than non-material changes), the termination of this Management Agreement, or enter into any other management agreement with any new manager, or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of a Rating Agency Confirmation and written consent of the Servicer (acting at the direction of the Controlling Class Representative or, if there is no Controlling Class Representative, the Majority Controlling Class Holders); provided, that no other consent of any Noteholder shall be required; provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent Rating Agency Confirmation shall not be unreasonably withheldrequired in connection with the appointment of a Successor Manager if the Successor Manager is a Non-Securitization Entity.
(c) The Indenture Trustee, conditioned the Back-Up Manager and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(cutilize other agents or attorneys), at the terms cost of the Management Agreement shall notManager or the Issuer, as an Additional Securitization Expense, in Landlord's performing its obligations under this Base Indenture and its counsel's reasonable opinionthe other Transaction Documents, cause including Fiber Network management, operation, and maintenance; Fiber Network Asset dispositions and releases; any Restoration or Remedial Work; and confirmation of compliance by the Rent to fail to qualify as "rents from real property" within Issuer with the meaning of Section 856(d) provisions hereunder and under the other Transaction Documents and none of the CodeIndenture Trustee, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of Back-Up Manager or the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord Servicer shall have no right to enforce Tenant's rights under any such Management Agreement, except liability with respect to the termination thereof following termination of this Agreementthereto.
Appears in 2 contracts
Sources: Supplemental Indenture (Frontier Communications Parent, Inc.), Base Indenture (Frontier Communications Parent, Inc.)
Management Agreement. Except as otherwise provided below(a) The Properties are currently self-managed by Mortgage Borrower. In the event that the Improvements on each Individual Property are operated under the terms and conditions of a Management Agreement, Tenant the provisions of this Section 5.1.18 shall apply. Borrower shall not enter intopermit any Mortgage Borrower Entity to retain a manager to manage any Individual Property unless such manager is a Qualified Manager and has entered into a Management Agreement and an Agreement Regarding Management Agreement, amendeach in form and substance, surrender reasonably acceptable to Lender. All management fees payable pursuant to the Management Agreements shall be market fees similar to those payable to managers of properties of a similar type and quality pursuant to arm’s-length management agreements, taking into account differences in the quality or modify level of service provided; provided, however, that if TSP or an Affiliate of TSP is employed as Manager of the Properties, such fees payable to TSP or such Affiliate, as the case may be, shall be deemed to be market and arm’s-length. Borrower shall cause Mortgage Borrower to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreements on the part of Mortgage Borrower to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower under the Management Agreements and (ii) promptly notify Lender of the giving of any notice to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of any Management Agreement on the part of Mortgage Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not cause or permit Mortgage Borrower to surrender any Management Agreement, consent to the assignment by Manager of its interest under any Management Agreement, or terminate or cancel any Management Agreement or, in any respect that would have a Material Adverse Effect, modify, change, supplement, alter or amend any Management Agreement, either orally or in writing. Notwithstanding the foregoing, Borrower shall be entitled to cause or permit Mortgage Borrower to enforce and terminate any Management Agreement in accordance with the terms thereof; provided, however, that if the Management Agreement for any Individual Property is terminated, Borrower shall cause the applicable Mortgage Borrower Entity to simultaneously enter into a Person that is not an Affiliated Person replacement Management Agreement for such Individual Property. Subject to the rights of Mortgage Lender pursuant to the terms and conditions of the Mortgage Loan Documents, if Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any Management Agreement on the part of Mortgage Borrower to be performed or observed, and such default shall continue beyond the expiration of any applicable grace or cure period, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 to Marriott or Crestline without Landlord's prior written consent, which consent may be given appropriate to cause all the terms, covenants and conditions of such Management Agreement on the part of Mortgage Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Management Agreement shall be kept unimpaired and free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon any Individual Property at any time and from time to time while an uncured Event of Default exists for the purpose of taking any such action. If the Manager under any Management Agreement shall deliver to Lender a copy of any notice sent to Borrower or Mortgage Borrower of default under such Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon. Tenant may Borrower shall notify Lender if the Manager sub-contracts to a third party any or all of its management responsibilities under any Management Agreement. Borrower shall, from time to time, use its best efforts (or commercially reasonable efforts, at any time when the Manager under any Management Agreement is not an Affiliate of Borrower, Mortgage Borrower, any Principal, Guarantor or TSP) to obtain from the Manager under such Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Manager with the terms of such Management Agreement as may be reasonably requested by Lender. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Management Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised. Any sums expended by Lender pursuant to this Section 5.1.18(a) shall bear interest at the Default Rate from the date which is ten (10) Business Days after the date Lender first makes written demand upon Borrower for reimbursement of such cost to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be due and payable promptly upon demand by Lender therefor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to terminate any Management Agreement and replace the Manager (so long as such termination and/or replacement is not prohibited under the Mortgage Loan Documents), without penalty or fee, if at any time during the Loan: (i) there exists an uncured Event of Default, (ii) there exists a default by Manager (other than TSP or any other Affiliated Manager) under such Management Agreement, which default shall have continued beyond the expiration of any applicable grace or cure period, (iii) the Manager shall become insolvent or a debtor in accordance any bankruptcy or insolvency proceeding, or (iv) the Maturity Date occurs and the Loan is not paid in full. At such time as the Manager is removed as the Manager with respect to any Individual Property, a Qualified Manager shall assume management of such Individual Property pursuant to a replacement Management Agreement, and shall receive a property management fee not to exceed then current market rates for managers of properties of a similar type and quality pursuant to arm’s length management agreements and taking into account differences in the quality or level of service provided; provided, however, that (A) if a Securitization has occurred, Lender shall receive written confirmation from the Rating Agencies that management of such Individual Property by such Qualified Manager will not result in a downgrade, withdrawal or qualification of the initial, or, if higher, the then current ratings issued in connection with such Securitization, and (B) if a Securitization has not occurred, such Qualified Manager shall be subject to the Owner Agreementapproval of Lender, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant such approval not to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned delayed or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementconditioned.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender (continued)
4.3 any such telephone instructions are confirmed in writing by the Client or modify his authorized representative; then the Client agrees in order to induce Form-A-Co to act in reliance on any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may such instructions from time to timetime and at all times to keep Form-A-Co indemnified from and against all actions, proceedings, claims and in accordance with demands which may be brought or made against Form-A-Co and subject to the Owner Agreementall losses, without Landlord's consentcosts, enter intocharges, and/or terminate, in accordance with their respective terms, Management Agreements with damages and expenses which Form-A-Co may incur or sustain or for which it may become liable by reason of its Affiliated Persons or Marriott having acted on such instructions and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided notwithstanding that any such Management Agreement shall provide (a) that instructions may not have been duly authorized by the Management Agreement Client. The Client further agrees to reimburse Form-A-Co on a full indemnity basis for legal fees and all amounts due from Tenant other collection costs and expenses incurred in the enforcement of this indemnity. Without prejudice to the Manager foregoing Form-A-Co will be entitled to treat all such instructions as being duly authorized by the Client and may act accordingly.
5.) The Client indemnifies and holds harmless Form-A-Co and its directors and staff from any claim or action whatsoever and wheresoever arising excepting only actions claims costs demands loss or damage of any kind arising from any fraud or wilful misconduct of Form-A-Co or its directors or staff.
6.) The Client undertakes to immediately notify Form-A-Co of any material changes in the company’s/companies’ activities and of any changes in its/their beneficial ownership prior to such changes taking place.
7.) The Client undertakes to immediately notify Form-A-Co of any investigation in to his affairs or those of any Company or Trust acquired by him by any regulatory, supervisory or other than competent authority, or of any legal proceedings or actions commenced against him or any Company or Trust acquired by him. In such circumstances whereby notification is received by Form-A-Co from the System feeClient or other third party Form-A-Co reserves the right to temporarily suspend the services provided pending clarification or the outcome of any such investigations, actions or claims, or to cease to provide any or all of its services and to terminate this Agreement provided that written notice of the same shall be subordinate issued to the Lease Client. The Client hereby agrees and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the confirms that he will make no claims or commence any actions against Form-A-Co in consequence of said suspension or cessation of services or termination of this Agreement, Agreement by Form-A-Co under the circumstances stated above.
8.) The Client will discharge all fees and provided, further, that Landlord shall, disbursements due to Form-A-Co when requested to do so and if it succeeds any such fees or disbursements due to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent Form-A-Co shall not be unreasonably withheldduly and punctually paid neither Form-A-Co nor its directors or staff shall be under any further obligation to provide further services to the Client.
9.) The Client, conditioned or delayed and provided further thatForm-A-Co, except or both (as the case may require) shall have the right to terminate this Agreement at any time by giving 30 days’ notice in writing to the other party. Termination of this Agreement shall not prejudice any rights of the parties hereto in respect of any Management liability or obligation arising under this Agreement entered into pursuant prior to Section 14.3(c), such termination.
10.) This Agreement is governed by the terms Laws of Gibraltar and the Client hereby irrevocably submits to the non-exclusive jurisdiction of the Management Agreement shall not, Courts of Gibraltar in Landlord's and its counsel's reasonable opinion, cause the Rent relation to fail to qualify as "rents from real property" within the meaning any dispute or matter arising out of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, or in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementconnection therewith.
Appears in 2 contracts
Sources: Incorporating Management Agreement, Incorporating Management Agreement
Management Agreement. Except (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) until the occurrence of a Manager Trigger, any covenants and other provisions contained herein specifically relating to Manager, New Manager, Affiliated Manager and/or the Management Agreement and, in each case, contemplating the existence of a New Manager, Manager, Affiliated Manager and Management Agreement for the Property (in each case, as applicable) shall, in each case, be deemed to apply only as and to the extent applicable (provided, that, Borrower complies with the terms and conditions of this subsection (a)), (ii) Borrower shall, until a New Manager is engaged to manage the Property in accordance with the applicable terms and conditions hereof, at all times directly undertake and perform the duties of a property manager at the Property and otherwise provided belowcomply with the applicable covenants contained herein and in the other Loan Documents related thereto (the foregoing, Tenant the “Self-Management Obligations”), (iii) upon the occurrence of an Event of Default, Lender, at its option, may require Borrower to engage, in accordance with the terms and conditions set forth herein, a New Manager to manage the Property, which such New Manager shall not enter intobe (A) selected by Borrower and subject to Lender’s approval and (B) a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(b) Borrower shall (i) diligently and promptly perform, amendobserve and enforce all of the terms, surrender covenants and conditions of the Management Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement, (ii) promptly notify Lender of any default under the Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or modify other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.
(c) Borrower shall not, without the prior written consent of Lender, (i) surrender, terminate or cancel the Management Agreement, consent to any assignment of the Manager’s interest under the Management Agreement or otherwise replace Manager or renew or extend any Management Agreement (exclusive of, in each case, any automatic renewal or extension in accordance with a Person its terms) or enter into any other new or replacement management agreement with respect to the Property; provided, however, that is not an Affiliated Person Borrower may replace Manager and/or consent to the assignment of Manager’s interest under the Management Agreement, in each case, in accordance with the applicable terms and conditions hereof and of the other Loan Documents; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, the Management Agreement in any material respect.
(d) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 to Marriott or Crestline without Landlord's prior written consent, which consent may be given appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon. Tenant may Borrower shall notify Lender if Manager sub-contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement.
(e) Borrower shall, from time to time, and in accordance with and subject use its best efforts to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to obtain from Manager provided that any such Management Agreement shall provide (a) that under the Management Agreement and all amounts due from Tenant such certificates of estoppel with respect to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only compliance by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall notexercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an effect, then Tenant will modify interest.
(f) In the terms of event that the Management Agreement so that is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 60 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof. Borrower’s failure to submit the same within such time-frame shall, at Lender’s option, constitute an immediate Event of Default.
(g) Borrower shall have the right to replace Manager or consent to the assignment of Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and is continuing, (ii) Lender receives at least sixty (60) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement. Manager shall not (and Borrower shall not permit Manager to) resign as Manager or otherwise cease managing the Property until a New Manager is engaged to manage the Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(h) Without limitation of the foregoing, if Borrower fails to perform the Self- Management Obligations or if, after the first occurrence of the Manager Trigger, if the Management Agreement is terminated or expires (including, without limitation, pursuant to the Assignment of Management Agreement), comes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its counselterms), does not cause the Rent ceases to be so characterized under in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender, at its option, may require Borrower to engage, in accordance with the Code. Landlord shall have no right to enforce Tenant's rights under any such terms and conditions set forth herein and in the Assignment of Management Agreement, except a New Manager to manage the Property, which such New Manager shall (i) to the extent a Trigger Period is continuing and if opted by Lender, selected by Lender and (ii) be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(i) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager and Borrower shall execute an Assignment of Management Agreement in the form required by Lender (with such changes thereto as may be required by the Rating Agencies), (ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and new management agreement and (iii) if requested by Lender, Borrower shall deliver to Lender evidence that the engagement of such New Manager will not result in a Property Document Event.
(j) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination thereof following fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for replacing such Manager and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender). The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to any “cap” or similar limit on the amount of Reserve Funds held by Lender.
(k) Any sums expended by Lender pursuant to this AgreementSection 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 Debt, shall be secured by the lien of the Security Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Management Agreement. Except as otherwise provided below, Tenant 5.3.1. Borrower shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as duly and punctually pay all sums required to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that paid by Borrower under the Management Agreement and otherwise perform in all amounts due from Tenant material respects the obligations contemplated to be performed by it under the Management Agreement, subject to the Manager other than provisions of the System feeCollateral Assignment of Management Agreement, shall be subordinate and will, with due diligence and in a reasonable and prudent manner, enforce its rights under the Management Agreement to the Lease extent failure to perform or protect its rights thereunder might materially and adversely affect the business, operations, prospects, assets, properties or condition (financial or otherwise) of Borrower. Without limiting the foregoing, Borrower agrees that:
(a) Borrower shall at all amounts due from Tenant times promptly and faithfully keep, perform and comply with, or cause to Landlord under be kept, performed and complied with, prior to the Leaseexpiration of any applicable grace period, and the provisions of the Management Agreement to be complied with by it.
(b) Borrower shall give Lender prompt notice of any notice of default given to or received from the Manager under the Management Agreement, which notice shall include a copy of such notice whether or not Lender may be entitled to such notice directly from the Manager. Borrower shall promptly furnish to Lender upon Lender's reasonable request any and all information concerning the performance by it of the provisions of the Management Agreement and shall permit Lender or its representative at all reasonable times to make investigation or examination concerning the performance by it of the provisions of the Management Agreement. Within ten (10) days after receipt by Borrower, Borrower shall deliver to Lender a copy of any notice, communication, plan, specification or other instrument or document received or given by it in any way relating to or affecting the Management Agreement which may materially concern or affect the rights of Borrower under the Management Agreement.
(c) If any legal action or proceeding shall be instituted to terminate the Management Agreement, or for any other purpose materially affecting the termination Management Agreement, Borrower will, promptly upon service thereof upon on or to it, deliver to Lender a copy of each petition, summons, complaint, notice of motion, order to show cause and of all other provisions, pleadings and papers, however designated, served in any such action or proceeding. Borrower will consult with Lender before instituting suit against the termination Manager.
(d) Notwithstanding any other provision of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, if Borrower shall fail so to do, Lender may (but shall not be obligated to) take any such action as Lender reasonably deems required to prevent, mitigate or cure, in the reasonable opinion of Landlord and its counselwhole or in part, does not cause the Rent to be so characterized any default by Borrower under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except and upon the receipt by Lender from Borrower or the Manager, of any written notice of default by Borrower under the Management Agreement, Lender may rely thereon, and such notice shall constitute full authority and protection to Lender for any action taken by the Lender or its agents in good faith reliance thereon. All expenses, including reasonable attorneys' fees, incurred by Lender to prevent, mitigate or cure any such default, or to sustain the Lien of Lender on or security interest in the Management Agreement or the applicable Mortgaged Property, or the priority thereof, together with respect interest thereon at the Default Interest Rate, shall be deemed secured by the Security Documents and shall be payable within fifteen (15) days after demand. Nothing in this paragraph (d) shall limit Borrower's right under the Management Agreement to contest issues concerning requirements of law or other similar matters to the termination extent permitted by the Management Agreement. Without limiting the foregoing, Lender shall, upon ten (10) days prior written notice to Borrower (except in the case of an emergency) have the absolute and immediate right (but shall not be obligated) to enter in and upon the Mortgaged Properties or any part thereof following termination to such extent and as often as Lender, in its reasonable judgment, deems necessary or desirable to prevent or cure any such default or condition reasonably believed by Lender to constitute a material default by Borrower.
(e) Borrower shall give Lender prompt notice of this the commencement of, and consult with Lender in connection with the conduct of, any arbitration or appraisal proceeding under and pursuant to the provisions of the Management Agreement.
(f) Borrower shall do, or cause to be done, all things necessary to preserve and keep unimpaired its rights under the Management Agreement and its rights and will enforce the obligations of the Manager under the Management Agreement to the end that it may enjoy all of the rights granted to it thereunder.
Appears in 2 contracts
Sources: Loan Agreement (Arden Realty Inc), Loan Agreement (Arden Realty Inc)
Management Agreement. Except as otherwise provided belowBorrower represents and warrants that Borrower self-manages the Property, Tenant and no agent, affiliated or unaffiliated with Borrower, receives a fee or other compensation for managing the Property. Borrower shall not enter into, amend, surrender or modify any Management Agreement with engage a Person that is not an Affiliated Person as to Marriott or Crestline property manager for the Property without Landlord's Lender’s prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretionconditioned on, among other things, such manager being a Qualified Manager. Tenant may from time to time, and In the event that Lender determines that the Property is not being managed in accordance with and subject generally accepted management practices for properties similar to such Property, Lender shall deliver written notice thereof to Borrower, which notice shall specify with particularity the Owner Agreement, without Landlord's consent, enter into, and/or terminate, grounds for Lender’s determination. If (A) Lender determines that the conditions specified in Lender’s notice delivered in accordance with their respective termsthe immediately preceding sentence are not remedied to Lender’s satisfaction by Borrower within thirty (30) days from receipt of such notice or that Borrower has failed to diligently undertake correcting such conditions within such thirty (30) day period, or (B) an Event of Default has occurred and is continuing, (C) the Debt Service Coverage Ratio is equal to or less than 1.10 to 1.0 or (D) Borrower notifies Lender in writing that it no longer wishes to self-manage the Property, (i) Borrower shall, at Lender’s direction, engage a professional third party property manager acceptable to Lender and enter into a property management agreement acceptable to Lender with such management company (the “Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(bAgreement”), 14.3(c(ii) Borrower and 0 delegating operational authority for such third party manager shall execute Lender’s then standard assignment of management agreement and subordination of management fees reasonably acceptable to Lender conditionally assigning Borrower’s interest in such management agreement to Lender and subordinating manager’s right to receive fees and expenses under such agreement while the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the LeaseDebt remains outstanding, and (biii) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement Borrower shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), thereafter comply with the terms of the Management Agreement shall not, in Landlord's Sections 7.2 and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement7.3 below.
Appears in 2 contracts
Sources: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that Borrower shall cause Mortgage Borrower and Mezzanine A Borrower to (i) in a commercially reasonable manner diligently and promptly perform, observe and enforce all of the terms, covenants and conditions of each Management Agreement on the part of Mortgage Borrower to be performed, observed and all amounts due from Tenant enforced to the Manager other than the System fee, end that all things shall be subordinate done which are necessary to keep unimpaired the Lease rights of Mortgage Borrower under each Management Agreement, (ii) promptly notify Lender of any material default under any Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Mortgage Borrower under any Management Agreement; (iv) promptly give notice to Lender of any notice or information that Mortgage Borrower receives which indicates that any Manager is terminating its related Management Agreement or that Manager is otherwise discontinuing its management of any Individual Property; and (v) promptly enforce in a commercially reasonable manner the performance and observance of all amounts due from Tenant of the covenants required to Landlord be performed and observed by Manager under the Lease, and each Management Agreement.
(b) for Borrower shall not and shall not permit Mortgage Borrower or Mezzanine A Borrower to, without the termination thereof upon the termination prior written consent of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, Lender (which consent shall not be unreasonably withheld, conditioned or delayed delayed), (i) surrender, terminate or cancel any Management Agreement, consent to any assignment of any Manager’s interest under the related Management Agreement or otherwise replace Manager or renew or extend any Management Agreement (exclusive of, in each case, any automatic renewal or extension in accordance with its terms) or enter into any other new or replacement management agreement with respect to the Property; provided, however, (1) that Mortgage Borrower may replace Manager and/or consent to the assignment of Manager’s interest under a Management Agreement, in each case, in accordance with the applicable terms and provided further thatconditions hereof and of the other Loan Documents and (2) if no Event of Default has occurred and is continuing and the Individual Property for which such Management Agreement has been terminated, except cancelled and surrendered is a Permitted Self-Management Property, upon such termination, cancellation or surrender of such Management Agreement, Borrower shall be permitted to cause Mortgage Borrower to self-manage such Individual Property so long as Mortgage Borrower complies with the Self-Management Conditions; (ii) reduce or consent to the reduction of the term of a Management Agreement; (iii) increase or consent to the increase of the amount of any charges under a Management Agreement; or (iv) otherwise modify, change, alter or amend, in respect any material respect, or waive or release any of its material rights and remedies under, a Management Agreement in any material respect.
(c) If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any Management Agreement entered into pursuant on the part of Mortgage Borrower to Section 14.3(c)be performed or observed, then, without limiting the terms generality of the other provisions of this Agreement, and without waiving or releasing 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 Management Agreement on the part of Mortgage Borrower to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall notbe kept unimpaired and free from default. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and Mezzanine A Loan Documents, respectively, Lender and any Person designated by Lender shall have, and are hereby granted, the right (subject to the rights of Tenants and to the extent permitted by Legal Requirements and Health Care Requirements) to enter upon the related Individual Property at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under any Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in Landlord's reliance thereon. Manager has agreed to sub-contract to the un-Affiliated third-parties set forth on Schedule XX attached hereto its management responsibilities pursuant to the applicable Sub-Management Agreements set opposite such third-party. Borrower shall or shall cause Mortgage Borrower to notify Lender if Manager further sub-contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement and Borrower shall cause Mortgage Borrower to use commercially reasonable efforts to cause Manager to cause any sub-contracts of its counsel's reasonable opinion, cause management responsibilities to be entered into in accordance with the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) terms and conditions of the CodeAssignment of Management Agreement.
(d) Borrower shall or shall cause Mortgage Borrower to, it being agreed from time to time, use commercially reasonable efforts to obtain from Manager under each Management Agreement such certificates of estoppel with respect to compliance by Tenant that if Landlord and its counsel reasonably conclude that Mortgage Borrower with the terms of the each Management Agreement will as may be requested by Lender.
(e) Borrower shall have such an effect, then Tenant will modify the terms right to cause Mortgage Borrower to replace Manager or consent to the assignment of the Management Agreement so that the Manager’s rights under any Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and is continuing, (ii) Lender receives at least thirty (30) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event, and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement and such Qualified Manager has obtained all required approvals from the applicable Health Care Authorities. Manager shall not (and Borrower shall not permit Mortgage Borrower to permit Manager to) resign as Manager or otherwise cease managing any Individual Property (i) until a New Manager is engaged to manage such Individual Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents or (ii) if no Event of Default has occurred and is continuing and the Individual Property for which Manager has resigned is a Permitted Self-Management Property, Borrower shall be permitted to cause Mortgage Borrower to self-manage such Individual Property so long as Borrower complies with the Self-Management Conditions.
(f) Without limitation of the foregoing, if any Management Agreement is terminated or expires (including, without limitation, pursuant to the Assignment of Management Agreement), comes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its counselterms) but is not renewed or extended, does not cause the Rent ceases to be so characterized under in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Borrower shall either (A) cause Mortgage Borrower to engage, in accordance with the Code. Landlord terms and conditions set forth herein, a New Manager to manage the related Individual Property, which such New Manager shall have (i) to the extent a Trigger Period pursuant to clause (A)(ii) of the definition of Trigger Period is continuing or an Event of Default has occurred and is continuing and if opted by Lender, be selected by Lender and (ii) be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement or (B) if no right Event of Default has occurred and is continuing and the Individual Property related to enforce Tenant's rights under any such Management AgreementAgreement which was terminated or expired is a Permitted Self-Management Property, except Borrower to cause Mortgage Borrower to self-manage such Individual Property so long as Mortgage Borrower complies with the Self Management Conditions.
(g) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager, Borrower, Mezzanine A Borrower and Mortgage Borrower shall execute a Subordination of Management Agreement (with such changes thereto as may be required by the Rating Agencies), (ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and new management agreement and (iii) if requested by Lender, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that the engagement of such New Manager will not result in a Property Document Event.
(h) Borrower shall or shall cause Mortgage Borrower to notify Lender in writing, within five (5) Business Days following receipt thereof, of Mortgage Borrower’s receipt of any early termination thereof following fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that Borrower shall cause Mortgage Borrower to cause any such termination fee or payment to be promptly deposited into the Cash Management Account.
(i) In the event that an Event of Default has occurred and is continuing, Lender shall have the right to require Borrower to require Mortgage Borrower to appoint a Qualified Manager, which is not an Affiliate of Borrower, to manage all Permitted Self-Management Properties self-managed by Mortgage Borrower pursuant to a Qualified Management Agreement in accordance with the terms and conditions of this Agreement. In addition, in the event that (i) an Individual Property or Properties shall cease to be a Permitted Self-Management Property and/or (ii) the Self-Management Conditions shall no longer be satisfied, Lender shall have the right to require Borrower to cause Mortgage Borrower to appoint a Qualified Manager to manage all Permitted Self-Management Properties self-managed by Mortgage Borrower pursuant to a Qualified Management Agreement in accordance with the terms and conditions of this Agreement.
(j) Lender’s consent (not to be unreasonably withheld, conditioned or delayed) shall be required with respect to any Sale or Pledge of any Affiliated Manager, which consent may be conditioned upon receipt of a New Non-Consolidation Opinion.
(k) 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 Debt, shall be secured by the lien of the Pledge Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Management Agreement. Except as otherwise provided below, Tenant (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not enter intoaccrue. All fees (base, amendincentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to surrender the Management Agreement, consent to the assignment by the Manager of its interest under the Management Agreement, or modify terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding the foregoing, Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretionQualified Manager. Tenant may from time to time, and in accordance with and subject Subject to the Owner Agreementrights of Mortgage Lender, without Landlord's consentif Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons covenant or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation condition of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from on the part of Mortgage Borrower or Operating Tenant to be performed or observed, then, without limiting the Manager generality of the other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Borrower shall permit Lender, upon five (5) days prior notice to Borrower, 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 the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, furtherhowever, that Landlord Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to have, 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 the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management 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. None of Borrower, Mortgage Borrower or Operating Tenant shall, if it succeeds or permit, the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by a third-party without the last management agreement or amendment thereto to which it consentedprior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, conditioned or delayed cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall notbe made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by Lender made at any time within or prior to the period within which any such option may be exercised. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an effectAffiliate of, then nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant will modify the terms of to, terminate the Management Agreement so that and replace the Manager, without penalty or fee, if at any time during the Loan: (a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, in a Qualified Manager shall assume management of the reasonable opinion of Landlord and its counsel, does not cause the Rent applicable Individual Property pursuant to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such a Replacement Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality Corp)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that Borrower shall cause Mortgage Borrower to (i) in a commercially reasonable manner diligently and promptly perform, observe and enforce all of the terms, covenants and conditions of each Management Agreement on the part of Mortgage Borrower to be performed, observed and all amounts due from Tenant enforced to the Manager other than the System fee, end that all things shall be subordinate done which are necessary to keep unimpaired the Lease rights of Mortgage Borrower under each Management Agreement, (ii) promptly notify Lender of any material default under any Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Mortgage Borrower under any Management Agreement; (iv) promptly give notice to Lender of any notice or information that Mortgage Borrower receives which indicates that any Manager is terminating its related Management Agreement or that Manager is otherwise discontinuing its management of any Individual Property; and (v) promptly enforce in a commercially reasonable manner the performance and observance of all amounts due from Tenant of the covenants required to Landlord be performed and observed by Manager under the Lease, and each Management Agreement.
(b) for Borrower shall not and shall not permit Mortgage Borrower to, without the termination thereof upon the termination prior written consent of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, Lender (which consent shall not be unreasonably withheld, conditioned or delayed delayed), (i) surrender, terminate or cancel any Management Agreement, consent to any assignment of any Manager’s interest under the related Management Agreement or otherwise replace Manager or renew or extend any Management Agreement (exclusive of, in each case, any automatic renewal or extension in accordance with its terms) or enter into any other new or replacement management agreement with respect to the Property; provided, however, (1) that Mortgage Borrower may replace Manager and/or consent to the assignment of Manager’s interest under a Management Agreement, in each case, in accordance with the applicable terms and provided further thatconditions hereof and of the other Loan Documents or (2) if no Event of Default has occurred and is continuing and the Individual Property for which such Management Agreement has been terminated, except cancelled and surrendered is a Permitted Self-Management Property, upon such termination, cancellation or surrender of such Management Agreement, Borrower shall be permitted to cause Mortgage Borrower to self-manage such Individual Property so long as Mortgage Borrower complies with the Self-Management Conditions; (ii) reduce or consent to the reduction of the term of a Management Agreement; (iii) increase or consent to the increase of the amount of any charges under a Management Agreement; or (iv) otherwise modify, change, alter or amend, in respect any material respect, or waive or release any of its material rights and remedies under, a Management Agreement in any material respect.
(c) If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any Management Agreement entered into pursuant on the part of Mortgage Borrower to Section 14.3(c)be performed or observed, then, without limiting the terms generality of the other provisions of this Agreement, and without waiving or releasing 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 Management Agreement on the part of Mortgage Borrower to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall notbe kept unimpaired and free from default. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender and any Person designated by Lender shall have, and are hereby granted, the right (subject to the rights of Tenants and to the extent permitted by Legal Requirements and Health Care Requirements) to enter upon the related Individual Property at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under any Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in Landlord's reliance thereon. Manager has agreed to sub-contract to the un-Affiliated third-parties set forth on Schedule XX attached hereto its management responsibilities pursuant to the applicable Sub-Management Agreements set opposite such third-party. Borrower shall or shall cause Mortgage Borrower to notify Lender if Manager further sub-contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement and Borrower shall cause Mortgage Borrower to use commercially reasonable efforts to cause Manager to cause any sub-contracts of its counsel's reasonable opinion, cause management responsibilities to be entered into in accordance with the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) terms and conditions of the CodeAssignment of Management Agreement.
(d) Borrower shall or shall cause Mortgage Borrower to, it being agreed from time to time, use commercially reasonable efforts to obtain from Manager under each Management Agreement such certificates of estoppel with respect to compliance by Tenant that if Landlord and its counsel reasonably conclude that Mortgage Borrower with the terms of the each Management Agreement will as may be requested by Lender.
(e) Borrower shall have such an effect, then Tenant will modify the terms right to cause Mortgage Borrower to replace Manager or consent to the assignment of the Management Agreement so that the Manager’s rights under any Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and is continuing, (ii) Lender receives at least thirty (30) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event, and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement and such Qualified Manager has obtained all required approvals from the applicable Health Care Authorities. Manager shall not (and Borrower shall not permit Mortgage Borrower to permit Manager to) resign as Manager or otherwise cease managing any Individual Property (i) until a New Manager is engaged to manage such Individual Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents or (ii) if no Event of Default has occurred and is continuing and the Individual Property for which Manager has resigned is a Permitted Self-Management Property, Borrower shall be permitted to cause Mortgage Borrower to self-manage such Individual Property so long as Borrower complies with the Self-Management Conditions.
(f) Without limitation of the foregoing, if any Management Agreement is terminated or expires (including, without limitation, pursuant to the Assignment of Management Agreement), comes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its counselterms) but is not renewed or extended, does not cause the Rent ceases to be so characterized under in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Borrower shall either (A) cause Mortgage Borrower to engage, in accordance with the Code. Landlord terms and conditions set forth herein, a New Manager to manage the related Individual Property, which such New Manager shall have (i) to the extent a Trigger Period pursuant to clause (A)(ii) of the definition of Trigger Period is continuing or an Event of Default has occurred and is continuing and if opted by Lender, be selected by Lender and (ii) be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement or (B) if no right Event of Default has occurred and is continuing and the Individual Property related to enforce Tenant's rights under any such Management AgreementAgreement which was terminated or expired is a Permitted Self-Management Property, except Borrower to cause Mortgage Borrower to self-manage such Individual Property so long as Mortgage Borrower complies with the Self Management Conditions.
(g) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager, Borrower and Mortgage Borrower shall execute a Subordination of Management Agreement (with such changes thereto as may be required by the Rating Agencies), (ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and new management agreement and (iii) if requested by Lender, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that the engagement of such New Manager will not result in a Property Document Event.
(h) Borrower shall or shall cause Mortgage Borrower to notify Lender in writing, within five (5) Business Days following receipt thereof, of Mortgage Borrower’s receipt of any early termination thereof following fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that Borrower shall cause Mortgage Borrower to cause any such termination fee or payment to be promptly deposited into the Cash Management Account.
(i) In the event that an Event of Default has occurred and is continuing, Lender shall have the right to require Borrower to require Mortgage Borrower to appoint a Qualified Manager, which is not an Affiliate of Borrower, to manage all Permitted Self-Management Properties self-managed by Mortgage Borrower pursuant to a Qualified Management Agreement in accordance with the terms and conditions of this Agreement. In addition, in the event that (i) an Individual Property or Properties shall cease to be a Permitted Self-Management Property and/or (ii) the Self-Management Conditions shall no longer be satisfied, Lender shall have the right to require Borrower to cause Mortgage Borrower to appoint a Qualified Manager to manage all Permitted Self-Management Properties self-managed by Mortgage Borrower pursuant to a Qualified Management Agreement in accordance with the terms and conditions of this Agreement.
(j) Lender’s consent (not to be unreasonably withheld, conditioned or delayed) shall be required with respect to any Sale or Pledge of any Affiliated Manager, which consent may be conditioned upon receipt of a New Non-Consolidation Opinion.
(k) 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 Debt, shall be secured by the lien of the Pledge Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Management Agreement. Except Lessor shall have the right in its sole and absolute discretion to approve or disapprove in advance any manager or proposed manager (a "Manager") of the Facility which is not an Affiliate of Lessee, as otherwise provided below, Tenant shall well as any agreement relating to the management or operation of the Facility (a "Management Agreement") by a Manager which is not enter into, amend, surrender or modify an Affiliate of Lessee and Lessee will provide Lessor with an executed copy of any Management Agreement so approved by Lessor. Any Management Agreement (whether with a Person that Manager which is an Affiliate or is not an Affiliated Person as Affiliate of Lessee) must provide that (i) upon termination of this Lease or termination of Lessor's or Lessee's right to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation possession of the Leased Property to Manager provided that for any such Management Agreement shall provide (a) that reason, the Management Agreement and all amounts may be terminated by Lessor without liability for any payment due from Tenant or to become due to the Manager other than the System fee, thereunder; (ii) any management fees shall be subordinate subordinated to the Lease and all amounts due from Tenant payments of Rent to Landlord under the Lease, Lessor hereunder; and (biii) for in the termination thereof upon event Lessee is in default, the termination of this Agreement, and provided, further, that Landlord Manager shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by at the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed election of Lessor and provided further thatthe Manager continues to be paid, except in respect of any Management Agreement entered into pursuant continue to Section 14.3(c), perform under the terms of the Management Agreement for a period not to exceed ninety (90) days. No fees or other amounts payable by Lessee to any Manager shall not, excuse Lessee from its obligations to pay Rent and other amounts payable by Lessee to Lessor hereunder. No Management Agreement may be amended or modified in Landlord's and its counsel's reasonable opinion, cause any manner which materially affects the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) subordination of the Code, it being agreed management fees without the prior written consent of Lessor.
17. Article XXII is hereby amended by Tenant that if Landlord and its counsel reasonably conclude that adding the terms following paragraphs thereto: Add immediately following the first paragraph: Without limiting the generality of the Management Agreement will have such an effectforegoing paragraph, then Tenant will modify the terms Lessee shall indemnify, save harmless and defend Lessor Indemnified Parties (including, but not limited to, any Lessor Indemnified Party that is a guarantor of the Management Franchise Agreement so that pursuant to which the Management Leased Property is currently operated) ("Current Franchise Agreement") from and against all liabilities, in the reasonable opinion obligations, claims, damages, penalties, causes of Landlord action, costs and its counselexpenses (including, does but not cause the Rent to be so characterized limited to, transfer fees and termination fees) imposed upon or incurred by or asserted against Lessor Indemnified Parties under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except or with respect to the termination thereof following termination Current Franchise Agreement which arises as a result of (a) any default by Lessee under the terms of this Lease; or (b) any default by Lessee under the Current Franchise Agreement. Add immediately following the second paragraph: Without limiting the generality of the foregoing paragraph, Lessor shall indemnify, save harmless and defend Lessee Indemnified Parties (including, but not limited to, any Lessee Indemnified Party that is a guarantor of the Current Franchise Agreement) from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, but not limited to, transfer fees and termination fees) imposed upon or incurred by or asserted against Lessee Indemnified Parties under or with respect to the Current Franchise Agreement which arises as a result of (a) any default by Lessor under the terms of this Lease; (b) the sale by Lessor of the Leased Property or any interest of Lessor in the Leased Property; or (c) any act or omission of any person that acquires the Leased Property or any interest of Lesser in the Leased Property.
Section 23.1 is hereby modified by adding the following to the end of Section 23.1: Notwithstanding the foregoing, Lessor's prior consent is not required for assignments of this Lease in connection with a "change of control" transaction involving CapStar or CapStar Corp. (i.e., a merger, consolidation, sale or exchange of greater than 50% of the stock or other equity interest in either entity or a sale of all or substantially all of the assets of either entity.
19. Article XXIV is hereby modified by (i) substituting "an accounting firm acceptable to Lessor in its reasonable discretion" in lieu of "the same certified independent accounting firm that prepares the returns for Lessor or such other accounting firm as may be approved by Lessor" on the third through fifth line of subsection (b) thereof and (ii) deleting subsection (d) thereof.
20. Article XXXII is hereby amended by inserting "1010 Wisconsin Avenue, N.W.,
Appears in 2 contracts
Sources: Lease (Winston Hotels Inc), Lease (Winston Hotels Inc)
Management Agreement. Except (a) Borrower shall (i) cause Manager to manage the Property in accordance with the Management Agreement, (ii) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed and observed, (iii) promptly notify Lender of any default under the Management Agreement of which it is aware, (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, estimate, report and each material notice received by it under the Management Agreement, and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting Lender’s other rights or remedies under the Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder or under the Management Agreement, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act as otherwise may be appropriate to cause all the material terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed.
(b) Borrower shall not, without the prior written consent of Lender (which consent may be conditioned, without limitation, on Lender’s receipt of evidence that the same would not result in a breach or violation of any Property Document), (i) surrender, terminate, cancel, modify, renew or extend the Management Agreement (other than a renewal or extension provided belowfor in the Management Agreement); provided, Tenant that, so long as no Event of Default shall not have occurred and be continuing or would occur as a result of such replacement, Borrower may replace Manager with a Qualified Manager pursuant to a Qualified Management Agreement, (ii) enter intointo any new or other agreement relating to the management or operation of the Property with Manager or any other Person, amend(iii) consent to the assignment by Manager of its interest under the Management Agreement, surrender (iv) permit or modify suffer any transfer of the ownership, management or Control of an Affiliated Manager to occur, or (v) waive or release any of its rights and remedies under the Management Agreement in any material respect.
(c) In the event that the Management Agreement expires or is surrendered, terminated or canceled (without limiting any obligation of Borrower to obtain Lender’s consent to any surrender, termination, cancellation, modification, renewal or extension of the Management Agreement in accordance with the terms and provisions of this Agreement), Borrower shall enter into a Qualified Management Agreement with a Person that Qualified Manager contemporaneously with such expiration, surrender, termination or cancellation.
(d) Lender shall have the right to require Borrower to replace Manager with a Qualified Manager chosen by Borrower which is not an Affiliated Person as Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to manage the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons Property pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for a Qualified Management Agreement upon the day-to-day operation occurrence of any one or more of the Leased Property to following events: (i) at any time following the occurrence of an Event of Default beyond any applicable notice and/or cure periods, (ii) if at any time a Cash Sweep Period has occurred and is continuing, (iii) if Manager provided that any such Management Agreement shall provide (a) that be in default under the Management Agreement beyond any applicable notice and all amounts due from Tenant cure period, (iv) if Manager shall become insolvent or a debtor in any involuntary bankruptcy or insolvency proceeding that is not dismissed within ninety (90) days of the filing thereof, or any voluntary bankruptcy or insolvency proceeding, or (v) if at any time Manager has engaged in gross negligence, fraud or willful misconduct.
(e) Upon the occurrence and during the continuance of an Event of Default, Borrower shall not exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Management Agreement without the prior written consent of Lender.
(f) If at any time Lender consents to the Manager other than appointment of a new manager and/or the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord execution of a management agreement under the Lease, and (b) for the termination thereof upon the termination of this Agreement, such manager and provided, further, that Landlord Borrower shall, if it succeeds to Tenant's rights under any management agreementas a condition of Lender’s consent, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect execute an Assignment of any Management Agreement entered into pursuant to Section 14.3(c), the terms and subordination of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, management fees substantially in the reasonable opinion of Landlord form then used by Lender (or in such other form and its counsel, does not cause the Rent substance reasonably satisfactory to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLender).
Appears in 2 contracts
Sources: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Management Agreement. Except as otherwise provided below(a) If Borrower shall engage a Manager to manage the Property, Tenant Borrower shall not enter into(i) diligently perform, amendobserve and enforce all of the terms, surrender or modify covenants and conditions of any Management Agreement, if any, on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under any such Management Agreement with and (ii) promptly notify Lender of the giving of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of any such Management Agreement on the part of Borrower to be performed and observed and deliver to Lender a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's true copy of each such notice. Without Lender’s prior written consent, which Borrower shall not surrender any Management Agreement, consent to the assignment by Manager of its interest under any Management Agreement, or terminate or cancel any Management Agreement or modify, change, supplement, alter or amend any Management Agreement, in any material respect, either orally or in writing, and Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender any Management Agreement or to terminate, cancel, modify, change, supplement, alter or amend any Management Agreement in any respect, and any such surrender of any Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of any Management Agreement without the prior consent of Lender shall be void and of no force and effect.
(b) If Borrower shall default in the performance or observance of any material term, covenant or condition of any Management Agreement on the part of Borrower to be performed or observed and fails to remedy such default within any applicable cure period set forth in the Management Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 given appropriate to cause all the terms, covenants and conditions of any Management Agreement on the part of Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under any Management Agreement shall be kept unimpaired and free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If any Manager shall deliver to Lender a copy of any notice sent to Borrower of default under any Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon.
(c) Borrower shall notify Lender if any Manager sub-contracts to a third party or an affiliate any or all of its management responsibilities under any Management Agreement. Tenant may Borrower shall, from time to time, and in accordance use commercially reasonable efforts to obtain from any Manager under any Management Agreement such certificates of estoppel with and subject respect to compliance by Borrower with the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation terms of the Leased Property to Manager provided that any such Management Agreement as may be requested by Lender. Borrower shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shallexercise each individual option, if it succeeds any, to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by extend or renew the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect term of any Management Agreement entered into upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to Section 14.3(c)this 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 Debt, shall be secured by the lien of the Security Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(d) If (a) any Manager shall become insolvent or a debtor in (i) any involuntary bankruptcy or insolvency proceeding that is not dismissed within ninety (90) days of the filing thereof, or (ii) any voluntary bankruptcy or insolvency proceeding; (b) there exists an Event of Default which remains uncured and is continuing; (c) the Debt Service Coverage Ratio shall be less than 1.10 to 1.00; (d) there exists a default by any Manager beyond all applicable notice and cure periods under any Management Agreement; (e) there occurs any fraud, gross negligence, willful misconduct or misappropriation of funds relating to the Property by any Manager; or (f) there occurs any change in Control of Manager, then Lender, at its option, may require Borrower to engage a manager or replace any existing Manager with a new manager (the “New Manager”) to manage the Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Borrower pursuant to a written management agreement and is otherwise satisfactory to Lender in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the form then used by Lender. Without limitation of the foregoing, if required by Lender, Borrower shall, as a condition precedent to Borrower’s engagement of such New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and management agreement.
(e) In the event that the Borrower should ever elect to employ an affiliate or third party management company for the management of the Property, the terms of Borrower agrees (A) that such management company must be a Qualified Manager, and the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause be subject to the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) prior written approval of the CodeLender, it being agreed by Tenant which approval may be granted or denied in Lender’s reasonable discretion, (B) that if Landlord such management company shall receive a management fee reasonably acceptable to Lender, and its counsel reasonably conclude that the terms (C) to execute (and to cause such management company to execute) an Assignment of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement.
(f) To the extent that any Manager is an Affiliated Manager, in the reasonable opinion Borrower’s engagement of Landlord and its counsel, does not cause the Rent a Manager shall be subject to be so characterized under the Code. Landlord shall have no right Borrower’s delivery to enforce Tenant's rights under any such Management Agreement, except Lender of a New Non-Consolidation Opinion with respect to the termination thereof following termination of this Agreementsuch New Manager and new management agreement.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Management Agreement. Except as otherwise provided below, (a) Tenant shall not enter into, amend, surrender or modify into any Management Agreement unless (i) the Manager thereunder has been approved in writing by Landlord, (ii) such agreement specifies that the Manager’s right to collect or enforce payment of amounts due under such agreement on any date shall be subordinate to the obligations of Tenant regarding the payment of Rent under this Lease, and (iii) such agreement shall provide Landlord the right to terminate same upon termination of the Lease without liability for any amounts owing under such agreement as of such date of termination, for any termination fee, or otherwise. Landlord hereby approves Tenant’s entering into a Management Agreement with a Person Place Management Group, LLC.
(b) Tenant shall cause any Manager to manage the Leased Property or applicable portion thereof in accordance with the applicable Management Agreement. Tenant shall (i) diligently perform and observe all of the material terms, covenants and conditions of any Management Agreement on the part of Tenant to be performed and observed and (ii) promptly notify Landlord of any notice to Tenant of any material default under the Management Agreement of which it is aware.
(c) Tenant shall not terminate, materially modify, or enter into any Management Agreement (except that Tenant may continue to renew the existing Management Agreement with Place Management Group, LLC unless the Manager thereunder is not an Affiliated Person as replaced pursuant to Marriott or Crestline subparagraph (d) below) without the express consent of Landlord's prior written consent, which consent may be given conditioned upon the approval of the applicable Project Mortgagee.
(d) Landlord shall have the right to require Tenant to replace the Manager for any Project with a Person approved by Landlord and the applicable Project Mortgagee, following any one or withheld more of the following events: (i) thirty (30) days after Notice from Landlord to Tenant that such Manager has engaged in Landlord's sole but reasonable discretion. Tenant may fraud, gross negligence or willful misconduct arising from time to timeor in connection with its performance under the applicable Management Agreement, and or such Manager’s default under the Management Agreement which is not cured within any applicable cure period provided under the Management Agreement; (ii) a change in accordance with and subject control of such Manager, other than a change of control resulting from the death or legal disability of the controlling owner(s) of Manager; or (iii) so long as the Existing Mortgage Loan remains in place, if the Existing Lender shall require replacement of the Manager pursuant to the Owner terms of Section 5.13(C) of the Existing Loan Agreement. Notwithstanding the foregoing, without Landlord's consentLandlord shall not unreasonably withhold its approval of a change of control in Manager as long as (A) the then current executive management team of Manager continues to furnish professional and experienced operation and management of the Projects, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c(B) and 0 delegating operational authority for the day-to-day operation of Net Operating Income from the Leased Property continues to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other equal not less than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease1.05 times Base Rent, and (bC) for the termination thereof upon the termination as a result of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect such change of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, control Manager does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination become an Affiliate of this Agreementa Competitor of Landlord.
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Management Agreement. Except as otherwise provided below, Tenant shall not If the Lessee decides to enter into, amend, surrender into a management or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject agency agreement relating to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons management or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property Facility (collectively, the "Management Agreement"), Lessor shall have the right to Manager provided that any such Management Agreement shall provide (a) that approve the Management Agreement and all amounts due from Tenant , any modifications to the Manager Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and any other than the System fee, shall be subordinate material modification to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Management Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant. Lessor's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent approval shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any . The Management Agreement entered into pursuant shall provide, among other things, that (i) upon termination of this Lease or termination of Lessee's right to Section 14.3(cpossession of the Leased Property for any reason whatsoever, the Management Agreement may be terminated by Lessor without liability for any payment due or to become due to the manager of the Facility (the "Manager"), and (ii) all fees and other amounts payable by Lessee to the Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the existence of an Event of Default, and shall be at all times subordinate to Rent and such other amounts after the occurrence of an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel -------------------------------------------------------------------- Certificates and Covenants. -----------------------------
(a) At any time and from time to time upon not less than 10 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the terms date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter and any prospective purchaser of the Management Agreement Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall notbe paid by Lessor;
(v) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in Landlordits discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary to confirm compliance by Lessee and its counsel's reasonable opinionAffiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, cause a balance sheet, and detailed profit and loss and cash flow statements showing the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) financial position of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that Facility as at the terms end of the Management Agreement will have such an effectpreceding calendar quarter, then Tenant will modify the terms results of operation of the Management Agreement so Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense.
(c) At any time and from time to time upon not less than 10 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the Management Agreementmodifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the reasonable opinion form required, to the inclusion in the submission or filing of Landlord and its counselthe Consolidated Financials (including the report of the auditor, does not cause if the Rent Consolidated Financials to be so characterized under included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the Codepurpose of minimizing costs and delays. Landlord Lessee shall have no right reasonably cooperate with all requests made by its auditor, Lessor or the SEC to enforce Tenantpromptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's rights under any such Management Agreement, except Discussion and Analysis of Results of Operations and Financial Condition with respect to the termination thereof following termination of this AgreementLessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 1 contract
Management Agreement. Except (a) The management of the Mortgaged Property shall be by either: (i) Borrower or an Affiliate of Borrower approved by Lender, or (ii) a professional property management company with substantial experience in managing properties similar to the Improvements in the geographical region where the Improvements are located and which is approved by Lender (as otherwise provided belowapplicable, Tenant the "Property Manager"). All such management shall be undertaken pursuant to a written agreement (the "Property Management Agreement") between Borrower and Property Manager and approved by Lender. Borrower further covenants and agrees that Borrower shall require the Property Manager to maintain at all times during the term of this Agreement workers' compensation insurance as required by any Governmental Authority or any Legal Requirements.
(b) Absent obtaining the prior written consent of Lender, Borrower shall not enter intoremove or replace the Property Manager or terminate, amendmodify or amend the Property Management Agreement. Lender shall have the right to terminate, surrender or modify any direct Borrower to terminate, such Property Management Agreement in any of the following circumstances: (i) the occurrence of any default under the Property Management Agreement and the expiration of any applicable notice, cure or grace period then in effect with respect thereto, (ii) the occurrence of any Event of Default, (iii) a Person that change in 50% or more of the ownership of Property Manager or a change otherwise in the effective control over the Property Manager, (iv) any "for cause" reason for termination of the Property Manager including, without limitation, gross negligence, willful misconduct or fraud, or (v) the Property Manager becoming insolvent or a debtor in any bankruptcy or insolvency proceeding. In any circumstance where the Property Management Agreement is not terminated, Lender shall be entitled to approve any new replacement Property Management Agreement and Property Manager and, if Borrower fails to promptly act with respect thereto or if an Affiliated Person as Event of Default has occurred and is then continuing, Lender shall be entitled to Marriott retain, or Crestline without Landlord's prior written consentto direct Borrower to retain, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject a new Property Manager pursuant to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Property Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(cAgreement reasonably designated by Lender.
(c) and 0 delegating operational authority for the day-to-day operation of the Leased Any Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except solely with respect to the termination thereof following termination Mortgaged Property. Borrower shall cause Property Manager to follow a procedure such that all Rents generated by or derived from the Mortgaged Property shall first be utilized solely for current expenses directly attributable to the ownership and operation of the Mortgaged Property including, without limitation, current expenses relating to Borrower's liabilities and obligations with respect to this AgreementAgreement and the other Loan Documents and none of the Rents generated by or derived from the Mortgaged Property shall be diverted by Borrower (or Property Manager) and utilized for any other purpose; provided, however, absent the then existence of an Event of Default or to the extent prohibited pursuant to the Loan Documents otherwise, this provision shall not prohibit the distribution of any residual net operating income from the Mortgaged Property to the owners of Borrower after all current expenses and obligations to Lender and all current Mortgaged Property expenses and appropriate reserves have been satisfied and funded. LOAN AGREEMENT - Page 27 667404; Miami-Dade County – Florida
(d) Any Property Manager shall be required to execute an Assignment and Subordination of Management Agreement in form and content approved by Lender. To the extent a new Property Manager should be retained, such new Property Manager shall be required, as a condition to its being retained, to execute a substitute Assignment and Subordination of Management Agreement with respect to the new Property Management Agreement also in a form fully acceptable to Lender.
Appears in 1 contract
Management Agreement. Except (a) The Company shall enter into a management and leasing agreement with BPLP or its Affiliate (the "PROPERTY MANAGER") in substantially the form attached hereto as otherwise EXHIBIT B (the "MANAGEMENT AGREEMENT"). The Managing Member shall be entitled to receive under this Agreement, for its own account and in addition to any and all other amounts which the Managing Member is entitled to receive under this Agreement, a leasing override payment equal to $1.00 per net rentable square foot of leased space, including space demised under renewals or expansions, whether pursuant to options or otherwise, in consideration of the leasing services to be provided belowby the Property Manager pursuant to the Management Agreement (but only as and to the extent Property Manager is not entitled to receive such payment under the Management Agreement. Should the Management Agreement terminate for any reason, Tenant the Company shall enter into an agreement for management and leasing services for the Property with such operator or operators, and on such terms, as are satisfactory to the Managing Member in its sole and absolute discretion (but subject to SECTION 6.6 with respect to any such agreement with an Affiliate of the Managing Member, and provided that in no event shall the fees payable under any applicable management agreement with any such Affiliate of the Managing Member differ from those set forth in this SECTION 6.4(a) without the prior written consent of all Members). Any such replacement management agreement with an Affiliate of the Managing Member shall not enter intobe on materially different terms with respect to the level of services, amendstandards and obligations to be provided by the property manager thereunder, surrender or modify any than the original Management Agreement. The Managing Member agrees (on behalf of itself and the Property Manager) that, although the Management Agreement will provide for management fees payable to the Property Manager of not more than 2.00% of the Property's gross rental revenue, any such management fees which are in excess of 1.25% of the Property's gross rental revenue shall only be payable to the Property Manager to the extent paid by tenants (including, for such purpose, payments by tenants under so-called "gross leases"). The Property Manager shall also be entitled to receive reimbursements under the Management Agreement (in excess of the management fees payable thereunder) for the costs of Property Manager's on-site personnel up to and including the level of property manager. Such on-site personnel may consist of full-time staff as well as operating personnel who may spend time at the Property and at other properties, in which event the reimbursement shall be limited to the allocable share of such personnel's time spent at the Property. Property Manager shall not be reimbursed for any corporate overhead associated with a Person that is not an Affiliated Person as its corporate offices. All such reimbursement amounts shall at all times to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretionconsistent with the then current practices of the Property Manager and its Affiliates with respect to such matters on properties similar to the Property. Tenant may The Managing Member shall enforce the foregoing terms of the Management Agreement on behalf of the Company.
(b) As the Managing Member considers the type and scope of leasing guidelines to adopt for the Property from time to time, and in accordance the Managing Member may consult with and subject the Ceppeto Members with respect to the Owner Agreementmaterial issues related thereto; PROVIDED, HOWEVER, that the Managing Member may adopt such guidelines in its sole and absolute discretion without Landlord's consentthe approval of the Ceppeto Members, enter intonotwithstanding any objections or other concerns relating to such consultation or the fact that such consultation did not occur. The Members acknowledge that ▇▇▇▇▇ ▇▇▇▇ LaSalle shall be engaged as the exclusive leasing agent for the Property for a three (3) year term commencing on the Effective Date, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott on such other terms and also with other Persons conditions and pursuant to Sections 4.1.1(b), 14.3(c) such agreement as shall be mutually acceptable to the Managing Member and 0 delegating operational authority ▇▇▇▇▇ Lang LaSalle. The Managing Member shall have the right to cause the Company to obtain additional financing in its sole and absolute discretion to pay for the day-to-day operation all or a portion of the Leased costs associated with leasing space at the Property to Manager provided or for any other working capital needs of the Company, PROVIDED that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord financing is permitted under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall notSenior Loan and PROVIDED FURTHER that, in Landlord's and its counsel's reasonable opinionno event (except only in connection with a Refinancing) shall the Company borrow such amounts prior to the fifteenth (15th) anniversary of the Effective Date if the rate of interest payable thereon is in excess of the then applicable Additional Preferred Equity Return rate. Upon the written request of the Ceppeto Members, the Managing Member shall provide to the Ceppeto Members copies of all material documents relating to such financing. In the event that Managing Member elects to cause the Rent Company to fail obtain such additional financing, the Managing Member (or its Affiliates) shall have the right to qualify as "rents provide such financing in an amount and on terms and conditions no less favorable than the Company would have obtained from real property" within an unaffiliated third-party lender (but subject to the meaning provisos set forth in the third sentence of Section 856(d) of the Codethis SECTION 6.4(b)), it being agreed by Tenant PROVIDED, HOWEVER, that if Landlord the Managing Member (or its Affiliates) elects to provide such financing directly, the Managing Member shall give written notice of such election to the Ceppeto Members, which notice shall specify the material terms and its counsel reasonably conclude conditions of such proposed financing (which terms and conditions shall be no less favorable than the Company could have obtained from an unaffiliated third-party lender, as determined by the Managing Member, and the Ceppeto Members shall have the right to provide their proportionate share of such financing (based upon the then applicable Percentage Interests), such election to be made, in writing, within thirty (30) days after the date on which the Ceppeto Members shall have received such written notice from the Managing Member. In the event that the Ceppeto Members do not timely make such election, they shall be deemed to have elected not to provide their proportionate share of such financing. Any such loan made by the Managing Member shall be on terms substantially the same as those contained in the applicable notice provided to the Ceppeto Members, and shall close no later than 180 days after the date of such notice. If the Management Agreement will have financing does not close within such an effecttime, then Tenant will modify and the Managing Member still intends to provide such financing, the Managing Member shall so notify the Ceppeto Members and again allow the Ceppeto Members the option to participate in such financing on the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementset forth above.
Appears in 1 contract
Management Agreement. Except as (a) Borrower shall cause Mortgage Borrower to (i) diligently and promptly perform, observe and enforce all of the terms, covenants and conditions of each Management Agreement on the part of Mortgage Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower under each Management Agreement, (ii) promptly notify Lender of any default under the Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Mortgage Borrower under any Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower or Mortgage Borrower receives which indicates that any Manager is terminating the applicable Management Agreement or that any Manager is otherwise provided below, Tenant discontinuing its management of the applicable Individual Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by each Manager under each Management Agreement.
(b) Borrower shall not enter intocause Mortgage Borrower to, amendwithout the prior written consent of Lender, surrender (i) surrender, terminate or modify cancel any Management Agreement, consent to any assignment of any Manager’s interest under such Management Agreement or otherwise replace any Manager or renew or extend any Management Agreement (exclusive of, in each case, any automatic renewal or extension in accordance with a Person its terms) or enter into any other new or replacement management agreement with respect to any Individual Property; provided, however, that is not Borrower may (or may cause Mortgage Borrower to) replace any Manager and/or consent to the assignment of such Manager’s interest under the applicable Management Agreement, in each case, in accordance with the applicable terms and conditions hereof and of the other Loan Documents; (ii) reduce or consent to the reduction of the term of any Management Agreement; (iii) increase or consent to the increase of the amount of any charges under any Management Agreement; or (iv) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, any Management Agreement in any material respect. In no instance shall management fees under any Management Agreement, when aggregated with management fees under the Special Management Agreement, exceed an Affiliated Person amount equal to the product of (1) 3% and (2) Gross Rents plus Operating Income.
(c) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents and the right of Mezzanine A Lender under the Mezzanine A Loan Documents, if Mortgage Borrower shall default beyond the expiration of any applicable notice and cure period in the performance or observance of any material term, covenant or condition of any Management Agreement on the part of Mortgage Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 to Marriott or Crestline without Landlord's prior written consent, which consent may be given appropriate to cause all the terms, covenants and conditions of such Management Agreement on the part of Mortgage Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under any Management Agreement shall be kept unimpaired and free from default. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents and the rights of Mezzanine A Lender under the Mezzanine A Loan Documents, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon any applicable Individual Property at any time and from time to time for the purpose of taking any such action. If any Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under any Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon. Tenant may Borrower shall (and shall cause Mortgage Borrower to) notify Lender if any Manager sub-contracts to a third party or an Affiliate any or all of its management responsibilities under any Management Agreement.
(d) Borrower shall, from time to time, use commercially reasonable efforts to cause Mortgage Borrower to obtain from each Manager under each Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of such Management Agreement as may be reasonably requested by Lender. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of any Management Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and, subject to the rights of Mortgage Lender under the Mortgage Loan Documents and the rights of Mezzanine A Lender under the Mezzanine A Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney in fact (exercisable upon the occurrence and during the continuance of an Event of Default) to exercise any such option in name of and upon behalf of Borrower to cause Mezzanine A Borrower to cause Mortgage Borrower to exercise each individual option, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(e) In the event that any Management Agreement is scheduled to expire at any time during the term of the Loan, Borrower shall submit (or cause Mortgage Borrower to submit) to Lender by no later than 30 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and subject conditions hereof. The failure to submit the same within such time-frame shall, at Lender’s option, constitute an immediate Event of Default.
(f) Borrower shall have the right to cause Mortgage Borrower to replace any Manager or consent to the Owner assignment of any Manager’s rights under the applicable Management Agreement, in each case, to the extent that (i) no Event of Default has occurred and is continuing, (ii) Lender receives at least sixty (60) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement. No Manager shall (and Borrower shall not permit (and shall not allow Mortgage Borrower to permit) any Manager to) resign as Manager or otherwise cease managing any Individual Property until a New Manager is engaged to manage such Individual Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(g) Without limitation of the foregoing, if any Management Agreement is terminated or expires (including, without Landlord's consentlimitation, enter intopursuant to the applicable Subordination of Management Agreement), and/or terminatecomes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its terms), ceases to be in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender, at its option, may require Borrower to cause Mortgage Borrower to engage, in accordance with their respective termsthe terms and conditions set forth herein and in the applicable Subordination of Management Agreement, Management Agreements with its Affiliated Persons or Marriott a New Manager to manage the applicable Individual Property, which such New Manager shall (i) to the extent a Trigger Period is continuing and also with other Persons if opted by Lender, selected by Lender and (ii) be a Qualified Manager and shall be engaged pursuant to Sections 4.1.1(ba Qualified Management Agreement.
(h) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager, Borrower and Mortgage Borrower shall execute a Subordination of Management Agreement in the form required by Lender (with such changes thereto as may be required by the Rating Agencies), 14.3(c(ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and 0 delegating operational authority new management agreement and (iii) if requested by Lender, Borrower shall deliver to Lender evidence that the engagement of such New Manager will not result in a Property Document Event.
(i) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s or Mortgage Borrower’s receipt of any early termination fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that subject to the rights of Mortgage Lender under the Mortgage Loan Documents and the rights of Mezzanine A Lender under the Mezzanine A Loan Documents, Borrower shall hold (and shall cause Mortgage Borrower to hold) any such termination fee or payment in trust for the day-to-day operation benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for replacing such Manager and/or for payment of the Leased Property Debt or otherwise in connection with the Loan evidenced by the Note, as so determined by Lender). The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to Manager provided that any “cap” or similar limit on the amount of Reserve Funds held by Lender.
(j) Any sums expended by Lender pursuant to this Section shall bear interest at the Default Rate from the date such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant cost is incurred to the Manager other than the System feedate of payment to Lender, shall be subordinate deemed to constitute a portion of the Lease and all amounts due from Tenant to Landlord under the LeaseDebt, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only secured by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms lien of the Management Pledge Agreement and the other Loan Documents and shall not, in Landlord's be immediately due and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed payable upon demand by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLender therefor.
Appears in 1 contract
Management Agreement. Except (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) until the occurrence of a Manager Trigger, any covenants and other provisions contained herein specifically relating to Manager, New Manager, Affiliated Manager and/or the Management Agreement and, in each case, contemplating the existence of a New Manager, Manager, Affiliated Manager and Management Agreement for the Property (in each case, as applicable) shall, in each case, be deemed to apply only as and to the extent applicable (provided, that, Borrower complies with the terms and conditions of this subsection (a)), (ii) Borrower shall, until a New Manager is engaged to manage the Property in accordance with the applicable terms and conditions hereof, at all times directly undertake and perform the duties of a property manager at the Property and otherwise provided belowcomply with the applicable covenants contained herein and in the other Loan Documents related thereto (the foregoing, Tenant the “Self-Management Obligations”), (iii) upon the occurrence of a Trigger Period, Lender, at its option, may require Borrower to engage, in accordance with the terms and conditions set forth herein, a New Manager to manage the Property, which such New Manager shall not enter intobe (A) selected by Borrower and subject to Lender’s approval and (B) a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement
(b) Borrower shall (i) diligently and promptly perform, amendobserve and enforce all of the terms, surrender covenants and conditions of the Management Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement, (ii) promptly notify Lender of any default under the Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or modify other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.
(c) ▇▇▇▇▇▇▇▇ shall not, without the prior written consent of ▇▇▇▇▇▇, (i) surrender, terminate or cancel the Management Agreement, consent to any assignment of the Manager’s interest under the Management Agreement or otherwise replace Manager or renew or extend any Management Agreement (exclusive of, in each case, any automatic renewal or extension in accordance with a Person its terms) or enter into any other new or replacement management agreement with respect to the Property; provided, however, that is not an Affiliated Person Borrower may replace Manager and/or consent to the assignment of Manager’s interest under the Management Agreement, in each case, in accordance with the applicable terms and conditions hereof and of the other Loan Documents; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, the Management Agreement in any material respect.
(d) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 to Marriott or Crestline without Landlord's prior written consent, which consent may be given appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon. Tenant may Borrower shall notify Lender if Manager sub-contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement.
(e) Borrower shall, from time to time, and in accordance with and subject use its best efforts to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to obtain from Manager provided that any such Management Agreement shall provide (a) that under the Management Agreement and all amounts due from Tenant such certificates of estoppel with respect to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only compliance by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), Borrower with the terms of the Management Agreement as may be requested by ▇▇▇▇▇▇. Borrower shall notexercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by ▇▇▇▇▇▇ made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an effect, then Tenant will modify interest.
(f) In the terms of event that the Management Agreement so that is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 60 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof. Borrower’s failure to submit the same within such time-frame shall, at Lender’s option, constitute an immediate Event of Default.
(g) Borrower shall have the right to replace Manager or consent to the assignment of Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and is continuing, (ii) Lender receives at least sixty (60) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement. Manager shall not (and ▇▇▇▇▇▇▇▇ shall not permit Manager to) resign as Manager or otherwise cease managing the Property until a New Manager is engaged to manage the Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(h) Without limitation of the foregoing, if Borrower fails to perform the Self- Management Obligations or if, after the first occurrence of the Manager Trigger, if the Management Agreement is terminated or expires (including, without limitation, pursuant to the Assignment of Management Agreement), comes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its counselterms), does not cause the Rent ceases to be so characterized under in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender, at its option, may require Borrower to engage, in accordance with the Code. Landlord shall have no right to enforce Tenant's rights under any such terms and conditions set forth herein and in the Assignment of Management Agreement, except a New Manager to manage the Property, which such New Manager shall (i) to the extent a Trigger Period is continuing and if opted by Lender, selected by Lender and (ii) be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(i) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager and Borrower shall execute an Assignment of Management Agreement in the form required by Lender (with such changes thereto as may be required by the Rating Agencies), (ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and new management agreement and (iii) if requested by ▇▇▇▇▇▇, Borrower shall deliver to Lender evidence that the engagement of such New Manager will not result in a Property Document Event.
(j) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination thereof following fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in ▇▇▇▇▇▇’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by ▇▇▇▇▇▇ for replacing such Manager and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender). The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to any “cap” or similar limit on the amount of Reserve Funds held by Lender.
(k) Any sums expended by Lender pursuant to this AgreementSection 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 Debt, shall be secured by the lien of the Security Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Management Agreement. Except (a) Borrower shall (i) cause Manager to manage the Property in accordance with the Management Agreement, (ii) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed and observed, (iii) promptly notify Lender of any default under the Management Agreement of which it is aware, (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, estimate, report and each material notice received by it under the Management Agreement, and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement in accordance with commercially reasonable real estate practices for similar properties. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting Lender’s other rights or remedies under the Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder or under the Management Agreement, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act as otherwise may be appropriate to cause all the material terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed.
(b) Borrower shall not, without the prior written consent of Lender (which consent may be conditioned, without limitation, on Lender’s receipt of evidence that the same would not result in a breach or violation of any Property Document), (i) surrender, terminate, cancel, modify, renew or extend the Management Agreement (other than a renewal or extension provided belowfor in the Management Agreement); provided, Tenant that, so long as no Event of Default shall not have occurred and be continuing or would occur as a result of such replacement, Borrower may replace Manager with a Qualified Manager pursuant to a Qualified Management Agreement, (ii) enter intointo any new or other agreement relating to the management or operation of the Property with Manager or any other Person, amend(iii) consent to the assignment by Manager of its interest under the Management Agreement, surrender (iv) permit or modify suffer any transfer of the ownership, management or Control of an Affiliated Manager to occur, or (v) waive or release any of its rights and remedies under the Management Agreement in any material respect.
(c) In the event that the Management Agreement expires or is surrendered, terminated or canceled (without limiting any obligation of Borrower to obtain Lender’s consent to any surrender, termination, cancellation, modification, renewal or extension of the Management Agreement in accordance with the terms and provisions of this Agreement), Borrower shall enter into a Qualified Management Agreement with a Person that Qualified Manager contemporaneously with such expiration, surrender, termination or cancellation.
(d) Lender shall have the right to require Borrower to replace Manager with respect to the Property as a whole or any one or more Individual Properties designated by ▇▇▇▇▇▇ from time to time with a Qualified Manager chosen by Borrower which is not an Affiliated Person as Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to manage the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons Property pursuant to Sections 4.1.1(b)a Qualified Management
(e) Upon the occurrence and during the continuance of an Event of Default, 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that Borrower shall not exercise any such Management Agreement shall provide (a) that rights, make any decisions, grant any approvals or otherwise take any action under the Management Agreement and all amounts due from Tenant without the prior written consent of Lender.
(f) If at any time Lender consents to the Manager other than appointment of a new manager and/or the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord execution of a management agreement under the Lease, and (b) for the termination thereof upon the termination of this Agreement, such manager and provided, further, that Landlord Borrower shall, if it succeeds to Tenant's rights under any management agreementas a condition of ▇▇▇▇▇▇’s consent, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect execute an Assignment of any Management Agreement entered into pursuant to Section 14.3(c), the terms and subordination of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, management fees substantially in the reasonable opinion of Landlord form then used by ▇▇▇▇▇▇ (or in such other form and its counsel, does not cause the Rent substance reasonably satisfactory to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLender).
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant Lessee agrees to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and obtain Lessor's prior consent (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld) to the terms of any management or agency agreement relating to the management or operation of the Hotel (a "MANAGEMENT AGREEMENT"), conditioned or delayed any material amendment or modification thereto, under which the payment of management fees is not expressly subordinate to the payment of Rent hereunder on terms reasonably acceptable to Lessor (provided, however, management fees and provided further thatother amounts may be paid to the Manager so long as no Event of Default has occurred hereunder). Lessee shall, except in respect upon request, provide Lessor with a copy of any proposed Management Agreement. Lessee also shall provide Lessor with copies of any and all amendments or modifications of a Management Agreement which are entered into from time to time. Without limiting the generality of the foregoing, any Management Agreement entered into shall provide that (i) upon termination of this Lease or termination of Lessee's right to possession of the Leased Property for any reason other than a termination by Lessor pursuant to Section 14.3(c)2.5, the terms of the Management Agreement may be terminated by Lessor without liability for any payment due or to become due to the Hotel Manager, and (ii) except as provided in the Master Hotel Agreement, any management fees payable to any Affiliate of Lessee shall not, in Landlord's and its counsel's reasonable opinion, cause be expressly subordinated to the payments of Rent to fail Lessor hereunder (provided, however, management fees and other amounts may be paid to qualify the Manager so long as "rents no Event of Default has occurred hereunder), and no fees or other amounts payable by Lessee to the Manager shall excuse Lessee from real property" within its obligations to pay Rent and other amounts payable by Lessee to Lessor hereunder. Lessor shall have the meaning right to approve in advance any Manager who is not an Affiliate of Section 856(dLessee.
(b) In the event that Lessor in good faith has concerns regarding the character, conduct or performance of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms General Manager of the Management Agreement Hotel, Lessee and Manager will have such an effectconsult with Lessor to discuss Lessor's concerns and attempt to address any deficiencies in character, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementconduct or performance.
Appears in 1 contract
Management Agreement. Except as otherwise provided below(a) As of the Closing Date, Tenant there are no Management Agreements. If, at any time, Borrower desires to enter into a Management Agreement with respect to any Individual Property, Borrower shall not do so in accordance with the terms and conditions of Section 4.15(g) and (i) hereof. In the event of a Leased Fee Lease Termination, Borrower shall enter intointo a Management Agreement with respect to the Individual Property related to such Leased Fee Lease Termination in accordance with the terms and conditions of Section 4.15(g) and (i) hereof.
(b) Borrower shall (i) diligently and promptly perform, amendobserve and enforce all of the terms, surrender or modify covenants and conditions of each Management Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under such Management Agreement, (ii) promptly notify Lender of any default under any Management Agreement with beyond applicable notice and cure periods thereunder; (iii) promptly deliver to Lender a Person copy of any written notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any written notice that Borrower receives which provides that Manager is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly use commercially reasonable efforts to enforce the performance and observance of all amounts due from Tenant of the covenants required to the be performed and observed by Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the LeaseManagement Agreement.
(c) Borrower shall not, and without the prior written consent of Lender (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed), except in respect (i) surrender, terminate or cancel any Management Agreement, consent to any assignment of any Manager’s interest under the related Management Agreement or otherwise replace Manager or renew or extend any Management Agreement entered (exclusive of, in each case, any automatic renewal or extension in accordance with its terms) or enter into any other new or replacement management agreement with respect to any Individual Property; provided, however, that Borrower may replace a Manager and/or consent to the assignment of a Manager’s interest under a Management Agreement, in each case to the extent permitted by and in accordance with the applicable terms and conditions hereof and of the other Loan Documents; (ii) reduce or consent to the reduction of the term of a Management Agreement; (iii) increase or consent to the increase of the amount of any charges under a Management Agreement; or (iv) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, a Management Agreement in any material respect. To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this subparagraph (c) and Lender fails to approve or disapprove the same pursuant thereto, Lender’s approval shall be deemed given with respect to Section 14.3(cthe matter for which approval was requested.
(d) If Borrower shall default after applicable notice and cure periods in the performance or observance of any material term, covenant or condition of a Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property, subject to the rights of tenants, at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management 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, subject to the rights of tenants. Borrower shall notify Lender if Manager sub-contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement (which sub-contract shall be subject to Lender’s reasonable consent).
(e) Borrower shall, from time to time, use commercially reasonable efforts to obtain from Manager under the Management Agreement such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause as may be reasonably requested by Lender.
(f) In the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant event that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 30 days prior to such an effect, then Tenant will modify expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof.
(g) Borrower shall have the right to replace Manager or consent to the assignment of the Management Agreement so that Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and is continuing, (ii) Lender receives at least thirty (30) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event and/or any termination or cancellation of any Ground Lease or any default thereunder and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement.
(h) Without limitation of the foregoing, if the Management Agreement is terminated or expires (including, without limitation, pursuant to the Assignment of Management Agreement (as defined below)), comes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its counselterms), does not cause the Rent ceases to be so characterized under in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender, at its option, may require Borrower to engage, in accordance with the Code. Landlord shall have no right to enforce Tenant's rights under any such terms and conditions set forth herein and in the Assignment of Management Agreement, except a New Manager to manage the Property, which such New Manager shall (i) to the extent an Event of Default has occurred and is continuing and if opted by Lender, selected by Lender and subject to the reasonable approval of Borrower if Lender has not foreclosed on the Property and (ii) be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(i) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager and Borrower shall execute an assignment and subordination of Management Agreement in form and substance reasonably acceptable to Lender (with such changes thereto as may be required by the Rating Agencies) (the “Assignment of Management Agreement”), (ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and new management agreement and (iii) if requested by Lender, Borrower shall deliver to Lender an Officer’s Certificate certifying that the engagement of such New Manager will not result in a Property Document Event and/or any termination thereof or cancellation of any Ground Lease or any default thereunder.
(j) Borrower shall notify Lender in writing, within ten (10) Business Days following receipt thereof, of Borrower’s receipt of any early termination of this Agreementfee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that Borrower shall cause any such termination fee or payment to be promptly deposited into the Cash Management Account.
Appears in 1 contract
Management Agreement. Except as otherwise provided belowAs of the date hereof, Tenant Borrower shall not enter intoself-manage the Property. If Borrower employs an third party Property Manager, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as Borrower shall (i) cause Property Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Property in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement approved by Lender, (ii) diligently perform and observe all amounts due from Tenant to of the Manager other than the System feeterms, shall be subordinate to the Lease covenants and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement shall noton the part of Borrower to be performed and observed, in Landlord's (iii) promptly notify Lender of any default under the Management Agreement of which it is aware, (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, report and its counsel's reasonable opinionestimate received by it under the Management Agreement, cause and (v) promptly enforce the Rent to fail to qualify as "rents from real property" within the meaning performance and observance of Section 856(d) all of the Codecovenants required to be performed and observed by Property Manager under the Management Agreement. If Borrower shall default in the performance or observance of any material term, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will on the part of Borrower to be performed or observed, then, without limiting Lender’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder or under the Management Agreement, Lender shall have such an effectthe right, then Tenant will modify but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the terms material terms, covenants and conditions of the Management Agreement so that on the part of Borrower to be performed or observed. Borrower shall not (i) surrender, terminate, cancel, modify, renew or extend the Management Agreement, (ii) enter into any agreement relating to the management or operation of the Property with Property Manager or any other Person, (iii) consent to the assignment by the Property Manager of its interest under the Management Agreement, or (iv) waive or release any of its rights and remedies under the Management Agreement, in each case without the reasonable opinion express consent of Landlord Lender. Lender shall have the right to require Borrower to hire or replace the Property Manager with (x) an Unaffiliated Qualified Manager selected by Borrower, or (y) another property manager chosen by Borrower and approved by Lender in its counselsole and absolute discretion, does not cause upon the Rent to occurrence of any one or more of the following events: (i) at anytime following the occurrence of an Event of Default, (ii) if Property Manager shall be so characterized in material default under the Code. Landlord Management Agreement beyond any applicable notice and cure period, (iii) if Property Manager shall have no right to enforce Tenant's rights under become insolvent or a debtor in any such Management Agreementbankruptcy or insolvency proceeding, except with respect to or (iv) if at any time the termination thereof following termination Property Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of this Agreementfunds.
Appears in 1 contract
Sources: Loan Agreement (ParagonCoin, LTD)
Management Agreement. Except as otherwise provided below, Tenant (a) The Company shall not enter into, amend, surrender or modify any into the Management Agreement for the Property with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, Property Manager (which consent may Management Agreement shall be given or withheld in Landlord's sole but reasonable discretion. Tenant may updated and supplemented from time to time, and in accordance with and subject ) pursuant to which Property Manager will provide the management services described therein to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and Company.
(b) for After the termination thereof upon the termination of this AgreementBluerock Bridge Loan has been repaid in full by Bluerock, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall notbe terminable either (i) in the event of an exercise of rights under Section 15, or (ii) by the Company and/or Bluerock only “for cause,” as defined in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such on written notice from the Managers or Bluerock to Property Manager (for the avoidance of doubt, a termination “for cause” or in the event of an effect, then Tenant will modify the terms exercise of rights by either party under Section 15 shall not be a Major Decision). The Managers acknowledge that a third party lender may require the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under terminable on thirty (30) days notice but neither the CodeManagers or Bluerock shall exercise such right except (i) as provided herein for cause; or (ii) as required by such lender. Landlord shall have no right Any delegation of the responsibilities of Property Manager or the subcontracting for such services will be subject to enforce Tenant's rights under any such Management AgreementBluerock’s prior written consent. Separate agreements may also be entered into with Bell, except Bluerock, their respective Affiliates, or with respect third parties for certain services to be provided to the termination thereof following termination Company, including leasing, construction management, property management, asset management, technology services, etc. Such arrangements shall be at market rates, and shall be entered into only with the prior written approval of this Agreementthe Managers and Bluerock, consistent with an approved budget and business plan for each asset. Unless otherwise agreed, all such contracts will be payable on a monthly basis and will be terminable upon thirty (30) day’s notice for any reason or no reason.
(c) On the date the Company or its Subsidiary shall acquire the Property (the “Acquisition Date”), ▇▇▇▇ Partners Inc. shall earn and the Company shall pay (or cause its Subsidiary to pay) an Acquisition Commission to ▇▇▇▇ Partners Inc. The cost to the Company of the Acquisition Commission shall be borne equally by Bluerock and ▇▇▇▇, and shall be included in their respective Capital Contributions. Upon the sale of the Property by the Company (and so long as Bluerock and ▇▇▇▇ have each been paid their respective Preferred Return), ▇▇▇▇ Partners Inc. shall earn and the Company shall pay to ▇▇▇▇ Partners Inc. a real estate commission (the “Disposition Commission”) in an amount equal to the contract sales price of the Property multiplied by one percent (1.0%).
Appears in 1 contract
Sources: Limited Liability Company/Joint Venture Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Management Agreement. Except as otherwise provided below, Tenant shall not If the Lessee decides to enter into, amend, surrender into a management or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject agency agreement relating to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons management or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property Facility (collectively, the "Management Agreement"), Lessor shall have the right to Manager provided that any such Management Agreement shall provide (a) that approve the Management Agreement and all amounts due from Tenant , any modifications to the Manager Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and any other than the System fee, shall be subordinate material modification to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Management Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant. Lessor's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent approval shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any . The Management Agreement entered into pursuant shall provide, among other things, that (i) upon termination of this Lease or termination of Lessee's right to Section 14.3(cpossession of the Leased Property for any reason whatsoever, the Management Agreement may be terminated by Lessor without liability for any payment due or to become due to the manager of the Facility (the "Manager"), and (ii) all fees and other amounts payable by Lessee to the Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the existence of an Event of Default, and shall be at all times subordinate to Rent and such other amounts after the occurrence of an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel --------------------------------------------------------------- Certificates and Covenants. --------------------------
(a) At any time and from time to time upon not less than 10 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the terms date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter and any prospective purchaser of the Management Agreement Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall notbe paid by Lessor;
(v) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in Landlordits discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary to confirm compliance by Lessee and its counsel's reasonable opinionAffiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, cause a balance sheet, and detailed profit and loss and cash flow statements showing the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) financial position of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that Facility as at the terms end of the Management Agreement will have such an effectpreceding calendar quarter, then Tenant will modify the terms results of operation of the Management Agreement so Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense.
(c) At any time and from time to time upon not less than 10 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the Management Agreementmodifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the reasonable opinion form required, to the inclusion in the submission or filing of Landlord and its counselthe Consolidated Financials (including the report of the auditor, does not cause if the Rent Consolidated Financials to be so characterized under included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the Codepurpose of minimizing costs and delays. Landlord Lessee shall have no right reasonably cooperate with all requests made by its auditor, Lessor or the SEC to enforce Tenantpromptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's rights under any such Management Agreement, except Discussion and Analysis of Results of Operations and Financial Condition with respect to the termination thereof following termination of this AgreementLessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 1 contract
Management Agreement. Except as otherwise provided below(a) The Improvements on the Property are operated under the terms and conditions of the Management Agreement. In no event shall the management fees under the Management Agreement exceed four percent (4%) of the Gross Income from Operations derived from the Property. Borrower shall (i) diligently perform and observe all of the material terms, Tenant covenants and conditions of the Management Agreement, on the part of Borrower to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not enter intosurrender the Management Agreement, amendconsent to the assignment by Manager of its interest under the Management Agreement, surrender or modify terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing; provided, however, that Borrower shall have the right to terminate the Management Agreement without Lender’s prior written consent upon satisfaction of the following conditions: (i) Borrower delivers to Lender written notice of its intention to terminate the Management Agreement at least five (5) days prior to such termination; (ii) Borrower replaces Manager within thirty (30) days of the termination of the Management Agreement with a Person that Qualified Manager pursuant to a Management Agreement; (iii) such Qualified Manager delivers to Lender an Assignment of Management Agreement substantially in the form of the Assignment of Management Agreement delivered to Lender by Manager on the date hereof; and (iv) if such replacement manager is not an Affiliated Person affiliate of Borrower, delivers to Lender an updated Insolvency Opinion acceptable to Lender. Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to Marriott surrender the Management Agreement, or Crestline without Landlord's prior written consentto terminate, which consent may be given cancel, modify, change, supplement, alter or withheld amend the Management Agreement, in Landlord's sole but reasonable discretion. Tenant may from time to timeany respect, and in accordance with and subject to any such surrender of the Owner Management Agreement, or termination, cancellation, material modification, change, supplement, alteration or amendment of the Management Agreement, without Landlord's consentthe prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons covenant or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation condition of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement on the part of Borrower to be performed or observed beyond applicable notice and all amounts due from Tenant to cure periods provided therein, then, without limiting the Manager generality of the other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination provisions of this Agreement, and without waiving or releasing 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 the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time upon reasonable prior written notice to Borrower and at reasonable hours for the purpose of taking any such action; provided, furtherhowever, that Landlord shallLender shall not take such action unless an Event of Default has occurred and is continuing. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement beyond applicable notice and cure periods provided therein, 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; provided, however, that if the Manager is not then an Affiliated Manager and Lender shall within five (5) days of its receipt of Manager’s notice receive from Borrower a written notice disputing Manager’s notice and stating the basis of such dispute and that it succeeds will attempt to Tenant's rights under resolve its dispute with Manager, then Lender shall refrain from taking any management agreementaction described in the immediately preceding sentence until the earlier of to occur of (x) the date that is thirty (30) days after Lender’s receipt of Manager’s notice of such default, and each (y) the date that is five (5) Business Days prior to the date on which Manager could, under the Management Agreement, terminate the Management Agreement, assuming that the facts stated in Manager’s notice were true. Borrower shall not, and shall not permit Manager to, sub-contract any or all of its management agreement shall so provide, be bound only by responsibilities under the last management agreement or amendment thereto Management Agreement to which it consenteda third party without the prior written consent of Lender, which consent shall will not be unreasonably withheld. Borrower shall, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant from time to Section 14.3(ctime (but not more frequently than once annually), use commercially reasonable efforts to obtain from Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall notexercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an effectinterest. Such power of attorney shall not be exercisable by Lender unless an Event of Default has occurred and is continuing. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, then Tenant will modify (ii) shall be deemed to constitute a portion of the terms Debt, (iii) shall be secured by the lien of the Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement so that and replace Manager, without penalty or fee, if at any time during the Loan: (a) an Event of Default has occurred and is then continuing, (b) there exists a material default by Manager under the Management Agreement, beyond any applicable cure and grace periods, (c) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding or (d) if at any time Manager has engaged in gross negligence, fraud or willful misconduct. Within thirty (30) days after Manager is removed, a Qualified Manager shall assume management of the reasonable opinion of Landlord and its counsel, does not cause the Rent Property pursuant to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such a Replacement Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Piedmont Office Realty Trust, Inc.)
Management Agreement. Except as otherwise provided below, Tenant shall not enter intonot, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given amend or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to modify the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation provisions of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement which provide (i) that, from and after the occurrence of any Default or Event of Default, all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord Landlord, (ii) for operation of the Leased Property under the Lease"Wyndham" name, (iii) that Wyndham, the Manager and their Affiliated Persons are prohibited from operating, managing or franchising another full-service Wyndham Hotel (as opposed to Wyndham Garden or resort hotels) within the designated area on Exhibit D and (biv) for the termination thereof thereof, at Landlord's option, upon the termination of this Agreement. Tenant shall not take any action, and grant any consent or permit any action under the Management Agreement which might have a material adverse effect on Landlord, without the prior written consent of Landlord; provided, furtherhowever, that Landlord shall, if it succeeds to TenantLandlord's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except required in respect connection with any assignment of any Management Agreement entered into pursuant to Section 14.3(c), the terms of Manager's rights under the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d(x) any Affiliated Person of the CodeManager having the full power, it being agreed right and authority to provide all services and organizational expertise as contemplated and required by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effector (y) any Person (including, then Tenant will modify the terms but not limited to, any Lending Institution) who acquires all or substantially all of the Management Agreement so management contracts of the Manager, provided that, in either such case, the Leased Property will retain the right to use the "Wyndham" name. In the event of an assignment pursuant to clause (y) preceding, provided that the successor Manager (i) assumes, in writing all obligations of the Manager under the Management Agreement, in and (ii) has a Tangible Net Worth, as of the reasonable opinion date of Landlord and its counselassignment, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect equal to the termination thereof following termination greater of the Tangible Net Worth of the Manager as of the date of this Agreement, and the Tangible Net Worth of the Manager as of the date of such assignment, the Manager shall be released from all liabilities arising under the Management Agreement from and after the effective date of such assignment. Tenant shall not agree to any change in the Manager (except as provided in the preceding sentences), to any change in the Management Agreement (except as provided in the preceding sentences), terminate the Management Agreement or permit the Manager to assign the Management Agreement (except as provided in the preceding sentences) without the prior written approval of Landlord in each instance; provided, however, that the Manager may grant a security interest in its right to receive payments under the Management Agreement without Landlord's prior written approval.
Appears in 1 contract
Management Agreement. Except as otherwise provided belowLessee agrees that in order to comply with certain of the REIT Requirements, Tenant it will, at all times, during the Term cause the Leased Property to be operated and managed by a management company ("Manager") that is an Eligible Independent Contractor. Lessee shall provide Lessor with an executed copy of all agreements relating to the management or operation of the Facility (a "Management Agreement"). Lessor shall have the right in its sole and absolute discretion to approve or disapprove in advance any Manager or proposed Manager of the Facility which is not enter intoa Qualified Manager. Unless waived by Lessor, amend, surrender or modify any Management Agreement with a Person must provide that is not an Affiliated Person as (i) upon termination of this Lease or termination of Lessor's or Lessee's right to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation possession of the Leased Property to Manager provided that for any such Management Agreement shall provide (a) that reason, the Management Agreement and all amounts may be terminated by Lessor without liability for any payment due from Tenant or to become due to the Manager other than the System fee, thereunder; (ii) any management fees shall be subordinate subordinated to payments of Rent to Lessor hereunder; and (iii) in the event Lessee is in default, the Manager shall, at the election of Lessor and provided the Manager continues to be paid, and Lessor (or any party acting by or through Lessor) agrees to perform Lessee's other obligations to Manager under the Management Agreement which accrue subsequent to the Lease and all amounts due from Tenant date the Lessor makes such election, continue to Landlord perform under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement for a period not to exceed ninety (90) days, provided that such election by Lessor shall not, not constitute a waiver by Lessor of any rights or remedies Lessor may have as a result of Lessee's default. No fees or other amounts payable by Lessee to any Manager shall excuse Lessee from its obligations to pay Rent and other amounts payable by Lessee to Lessor hereunder. No Management Agreement may be amended or modified in Landlord's and its counsel's reasonable opinion, cause any manner which materially affects the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) subordination of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that management fees without the terms prior written consent of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLessor.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that Borrower shall cause Mortgage Borrower to (i) diligently and promptly perform, observe and enforce all of the terms, covenants and conditions (other than those of a de minimis nature) of the Management Agreement on the part of Mortgage Borrower to be performed, observed and all amounts due from Tenant to the Manager enforced, (ii) promptly notify Lender of any default (other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord those of a de minimis nature) under the Lease, Management Agreement of which Mortgage Borrower is aware; (iii) [reserved]; (iv) promptly give notice to Lender of any written notice or credible information that Mortgage Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants (other than those of a de minimis nature) required to be performed and observed by Manager under the Management Agreement.
(b) for Borrower shall not, without the termination thereof upon the termination prior written consent of this Agreement, and provided, further, that Landlord shall, if it succeeds Lender (not to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed delayed) permit Mortgage Borrower to (i) surrender, terminate or cancel the Management Agreement; (ii) consent to any assignment of the Manager’s interest under the Management Agreement (other than in accordance with Section 4.15(f) below); (iii) replace Manager or enter into any other management agreement with respect to the Property (other than in accordance with Section 4.15(f) below); (iv) increase or consent to the increase of the management fees or any other material fees or charges under the Management Agreement; or (v) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and provided further thatremedies under, except the Management Agreement in respect any material respect.
(c) During the continuance of an Event of Default under the Loan Documents, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 reasonably necessary to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Upon prior written notice to Borrower, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property during the continuance of an Event of Default for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under the Management 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. Borrower shall not permit Mortgage Borrower to permit Manager to sub-contract to a third party (other than an Affiliate) any or all of its management responsibilities under the Management Agreement, provided, that Manager may sub-contract to a Qualified Manager the management responsibilities of Manager under a Management Agreement entered into pursuant to Section 14.3(c)a sub-management agreement, provided, that (1) the fees and charges payable under any such sub-management agreement do not exceed the management fees and charges payable to Manager under such Management Agreement and are the sole obligation of Manager, (2) any sub-management agreement terminates in the event of a termination of the Management Agreement, and (3) neither Mortgage Borrower nor Borrower shall have any obligations or liabilities under any such sub-management agreement.
(d) Borrower shall, from time to time, use commercially reasonable efforts to obtain from Manager under the Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause as may be requested by Lender.
(e) In the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant event that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effectis scheduled to expire at any time during the term of the Loan, then Tenant will modify the terms of then, unless the Management Agreement so that is subject to automatic renewals without any action to be taken on the part of any Person (and the Management Agreement is in fact automatically extended) Borrower shall submit to Lender by no later than forty-five (45) days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof.
(f) Borrower shall have the right to permit Mortgage Borrower to replace Manager or consent to the assignment of Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and its counselis continuing, does (ii) Lender receives, in the case of an assignment to a Manager who is not cause an Affiliated Manager, at least forty-five (45) days and, in the Rent case of an assignment to an Affiliated Manager, at least fifteen (15) days prior written notice of the same, and consents (not to be unreasonably withheld, conditioned or delayed) to such replacement (and the replacement Manager), (iii) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement and (iv) all the other conditions relating to a termination of the Management Agreement and replacement of the Manager set forth in the Assignment of Management Agreement are satisfied. If and for so characterized under long as Manager is an Affiliate of Borrower, Borrower shall not permit Mortgage Borrower to permit Manager to resign as Manager or otherwise cease managing the Code. Landlord shall have no right Property until a New Manager approved by Lender is engaged to enforce Tenant's rights under any such manage the Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(g) Without limitation of the foregoing, if the Management Agreement is terminated or expires pursuant to the Subordination of Management Agreement, except ceases to be in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender may require Borrower to cause Mortgage Borrower to engage, in accordance with the terms and conditions set forth herein and in the Subordination of Management Agreement, a New Manager to manage the Property, which such New Manager shall be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(h) As conditions precedent to any engagement of a New Manager hereunder, (i) such New Manager, Mortgage Borrower and Borrower shall execute a subordination of management agreement in the form reasonably required by Lender and (ii) to the extent that a Non-Consolidation Opinion was previously delivered, to the extent that such New Manager is an Affiliated Manager, if requested in writing by Lender, Borrower shall deliver to Lender, a New Non-Consolidation Opinion with respect to such New Manager and new management agreement
(i) Intentionally omitted.
(j) Any reasonable out-of-pocket costs expended by Lender pursuant to this Section 4.15 shall bear interest at the termination thereof following termination Default Rate from the date that is ten (10) Business Days after Lender demands payment from Borrower to the date of this Agreementpayment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Management Agreement. Except Lessor shall have the right to approve or disapprove in advance any manager or proposed manager (a "Manager") of the Facility as otherwise provided belowwell as any agreement relating to the management or operation of the Facility (a "Management Agreement") by a Manager (provided, Tenant however, that Lessor's consent shall not enter into, amend, surrender or modify be required with respect to any Manager which is an Affiliate of Lessee) and Lessee will provide Lessor with an executed copy of any Management Agreement so approved by Lessor, which approvals shall not be unreasonably withheld. Notwithstanding the foregoing, nothing herein shall be construed as requiring that Lessee engage a Manager for the Facility. Any Management Agreement (whether with a Person that Manager which is an Affiliate or is not an Affiliated Person as Affiliate of Lessee) must provide that (i) upon termination of this Lease or termination of Lessor's or Lessee's right to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation possession of the Leased Property to Manager provided that for any such Management Agreement shall provide (a) that reason, the Management Agreement and all amounts may be terminated by Lessor without liability for any payment due from Tenant or to become due to the Manager other than the System fee, thereunder; (ii) any management fees shall be subordinate subordinated to payments of Rent to Lessor hereunder; and (iii) in the Lease event Lessee is in default, the Manager shall, at the election of Lessor and all amounts due from Tenant provided the Manager continues to Landlord be paid, continue to perform under the Leaseterms of the Management Agreement for a period not to exceed ninety (90) days, provided that such election by Lessor shall not constitute a waiver by Lessor of any rights or remedies Lessor may have as a result of Lessee's default. No fees or other amounts payable by Lessee to any Manager shall excuse Lessee from its obligations to pay Rent and (b) for other amounts payable by Lessee to Lessor hereunder. No Management Agreement may be amended or modified in any manner without the termination thereof upon the termination prior written consent of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consentedLessor, which consent shall not be unreasonably withheld, conditioned delayed or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementconditioned.
Appears in 1 contract
Sources: Lease Agreement (Equity Inns Inc)
Management Agreement. Except as otherwise provided below(a) As of the date hereof, Tenant shall Owner has not enter into, amend, surrender or modify engaged any manager to manage the Property and pays no property management fee to any manager. In the event that Owner enters into a Management Agreement with a Person that is not an Affiliated Person Manager, Manager and Owner shall, as to Marriott or Crestline without Landlord's prior written a condition of Lender’s consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation execute a subordination of the Leased Property to Manager provided that any such Management Agreement shall provide in a form reasonably acceptable to Lender. Borrower shall: (a) that cause Owner to cause the Property to be managed pursuant to the Management Agreement; (b) cause Owner to promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all amounts due things necessary to preserve and to keep unimpaired its rights thereunder; (c) promptly notify (or cause Owner to notify) Lender of any default beyond all applicable notice and cure periods under the Management Agreement of which it is aware; (d) promptly deliver (or cause Owner to deliver) to Lender a copy of each financial statement, business plan, capital expenditure plan, and property improvement plan and any other notice, report and estimate received by Owner under the Management Agreement; and (e) cause Owner to promptly enforce in a commercially reasonable manner the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement. If Owner shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Owner to be performed or observed beyond all applicable notice and cure periods, then, without limiting Lender’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from Tenant to any of its obligations hereunder or under the Manager other than Management Agreement, Lender shall have the System feeright, but shall be subordinate under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the Lease material terms, covenants and all amounts due from Tenant conditions of the Management Agreement on the part of Owner to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement performed or amendment thereto to which it consentedobserved. Without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed, except in respect of any Borrower shall not permit Owner to: (i) surrender, terminate, cancel, extend or renew the Management Agreement entered or otherwise replace Manager or enter into any other management agreement (except pursuant to Section 14.3(c5.12.2 hereof); (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend in any material respect, or waive or release any of its material rights and remedies under, the Management Agreement; or (v) suffer or permit the occurrence and continuance of a default beyond any applicable cure period under the Management Agreement (or any successor management agreement) if such default permits Manager to terminate the Management Agreement (or such successor management agreement).
(b) Lender acknowledges that, as of the date hereof, there is no Management Agreement in place between Owner and a third party for the management of the Property. In the event the Overstock Lease is terminated, Borrower acknowledges that Lender reserves the right to require Owner to employ an affiliate or third party manager to manage the Property after the date hereof. In the event that the Owner should ever elect to employ an affiliate or third party management company for the management of the Property, the Borrower agrees (A) that such management company must be approved by Lender and any rating agency subject to the terms of this Agreement, and the Management Agreement shall notbe subject to the prior written approval of the Lender, which approval may be granted or denied in Landlord's Lender’s sole and its counsel's reasonable opinionabsolute discretion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d(B) that such management company shall not receive a management fee greater than three and one-half percent (3.5%) of Rents, and (C) to execute (and to cause such management company to execute) a Manager Consent in accordance with the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementSenior Loan Documents.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant Borrower shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as and shall cause Mortgage Borrower to Marriott or Crestline without Landlord's prior written consent, which consent may cause the Property to be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and operated in accordance with each Management Agreement. Borrower shall and subject shall cause Mortgage Borrower to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that diligently perform and observe all of the terms, covenants and conditions of each Management Agreement on the part of Borrower or Mortgage Borrower to be performed and observed, (b) promptly notify Lender of any default under any Management Agreement, (c) promptly deliver to Lender a copy of each financial statement, business plan and capital expenditures plan received by it under each Management Agreement and (d) promptly enforce the performance and observance of all amounts due from Tenant of the terms, covenants and conditions required to be performed and/or observed by Manager under each Management Agreement. If Borrower or Mortgage Borrower shall default in the Manager other than the System feeperformance or observance of any term, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement covenant or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect condition of any Management Agreement entered into pursuant on the part of Borrower or Mortgage Borrower to Section 14.3(c)be performed or observed, then, without limiting Lender’s other rights or remedies under this Agreement or the terms other Loan Documents, and without waiving or releasing Borrower or Mortgage Borrower from any of its obligations hereunder, under the other Loan Documents or under the Management Agreement, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause the terms, covenants and conditions of the Management Agreement shall on the part of Borrower or Mortgage Borrower to be performed or observed in all material respects. Notwithstanding the foregoing, Borrower hereby represents that, as of the Closing Date, the 210 American Property (as defined on Exhibit A annexed hereto) is self-managed and is not managed by a third party manager; the tenant at the 210 American Property, pursuant to its lease, is responsible, at its sole cost and expense, for performing maintenance and repairs and providing other services that a property manager would customarily provide at the 210 American Property. Borrower represents and acknowledges that Borrower, Mortgage Borrower and each of their Affiliates do not, and are not entitled to, receive a management fee in Landlord's and its counsel's reasonable opinion, cause connection with the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement210 American Property.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Plymouth Industrial REIT Inc.)
Management Agreement. Except as otherwise provided below, Tenant (a) The Issuer Entity shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause the Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Tower Sites in accordance with the Management Agreement. The Issuer Entity shall cause the Asset Entities (other than Crown Atlantic GT and subject Crown GT and their respective immediate parents) to (i) perform and observe all of the Owner Agreementmaterial terms, without Landlord's consentcovenants and conditions of the Management Agreement on the part of each Asset Entity to be performed and observed, enter into(ii) promptly notify the Indenture Trustee and the Servicer of any notice to any of the Asset Entities of any material default under the Management Agreement of which it is aware, and/or terminate, and (iii) prior to termination of the Manager in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement, to renew the Management Agreement shall not, prior to each expiration date thereunder in Landlord's and accordance with its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) terms. If any of the CodeAsset Entities shall default in the performance or observance of any material term, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will have on the part of the Asset Entities to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Indenture or the other Transaction Documents, and without waiving or releasing the Asset Entities from any of their obligations hereunder or under the Management Agreement, the Issuer Entity grants the Indenture Trustee or the Servicer on its behalf the right, upon prior written notice to the Asset Entities, to pay any sums and to perform any act as may be reasonably appropriate to cause such an effect, then Tenant will modify the terms material conditions of the Management Agreement so on the part of the Asset Entities to be performed or observed; provided, however, that neither the Indenture Trustee nor the Servicer will be under any obligation to pay such sums or perform such acts.
(b) The Issuer Entity shall not permit the Asset Entities to surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of Rating Agency Confirmations from each of the reasonable opinion Rating Agencies and written consent of Landlord and its counselthe Servicer. If at any time the Servicer consents to the appointment of a new Manager, does not or if an Acceptable Manager shall become the Manager, such new Manager, or the Acceptable Manager, as the case may be, then the Issuer Entity shall cause the Rent to be so characterized under Asset Entities to, as a condition of the Code. Landlord shall have no right to enforce Tenant's rights under any such Management AgreementServicer’s consent, except or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the termination thereof following termination form delivered in connection with the closing of the issuance of the Notes.
(c) The Servicer shall have right to terminate the Manager pursuant to Section 20 of the Management Agreement. The Indenture Trustee and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or to, at its own expense (except to the extent that a particular expense is expressly provided herein to be an Advance or an Additional Issuer Expense) utilize other agents or attorneys), in performing certain of its obligations under this AgreementIndenture and the other Transaction Documents, including, without limitation, Tower Site management, operation, and maintenance; Tower Site dispositions, releases, and substitutions; and confirmation of compliance by the Issuers with the provisions hereunder and under the other Transaction Documents and neither the Indenture Trustee nor the Servicer shall have any liability with respect thereto.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the LeaseThe Issuer shall, and shall cause the Asset Entities to, (bi) for perform and observe all of the termination thereof upon the termination of this Agreementmaterial terms, covenants and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement shall noton the part of each Asset Entity to be performed and observed and (ii) promptly notify the Indenture Trustee, in Landlord's the Back-Up Manager and its counsel's reasonable opinion, cause the Rent Servicer of any notice to fail to qualify as "rents from real property" within the meaning of Section 856(d) any of the CodeAsset Entities of any material default under the Management Agreement of which it has Knowledge. If any Asset Entity shall default in the performance or observance of any material term, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will have on the part of such an effectAsset Entity to be performed or observed, then Tenant will modify then, without limiting the terms Indenture Trustee’s other rights or remedies under this Base Indenture or the other Transaction Documents, and without waiving or releasing such Asset Entity from any of its obligations hereunder or under the Management Agreement, the Issuer grants the Indenture Trustee or the Servicer on its behalf the right, upon prior written notice to such Asset Entity, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement so on the part of such Asset Entity to be performed or observed; provided, that neither the Indenture Trustee nor the Servicer will be under any obligation to pay such sums or perform such acts.
(b) The Issuer shall not permit the Asset Entities to surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of a [***] and written consent of the reasonable opinion Servicer. If at any time the Servicer consents to the appointment of Landlord and its counsela new Manager, does not or if an Acceptable Manager shall become a Manager, such new Manager, or the Acceptable Manager, as the case may be, then the Issuer shall cause the Rent to be so characterized under Asset Entities to, as a condition of the Code. Landlord shall have no right to enforce Tenant's rights under any such Management AgreementServicer’s consent, except or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in form and substance reasonably satisfactory to the termination thereof Servicer.
(c) The Servicer shall have the right to require that the Manager be replaced in the manner set forth in Section 19(b) of the Management Agreement following termination the occurrence and continuation of this a Manager Termination Event pursuant to Section 19(b) of the Management Agreement.
(d) The Indenture Trustee, the Back-Up Manager and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or to utilize other agents or attorneys), at the cost of the Manager or the Issuer, as an Additional Obligor Expense, in performing its obligations under this Base Indenture and the other Transaction Documents, including Network management, operation, and maintenance; Network Asset dispositions and releases; any Restoration or Remedial Work; and confirmation of compliance by the Issuer with the provisions hereunder and under the other Transaction Documents and none of the Indenture Trustee, the Back-Up Manager or the Servicer shall have any liability with respect thereto.
Appears in 1 contract
Sources: Base Indenture (Tucows Inc /Pa/)
Management Agreement. Except as otherwise provided below, Tenant (a) The Issuers shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause the Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Tower Sites in accordance with the Management Agreement. The Issuers shall (i) perform and subject to observe all of the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective material terms, Management Agreements with its Affiliated Persons or Marriott covenants and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement shall not, in Landlord's on the part of each Issuer to be performed and its counsel's reasonable opinion, cause observed and (ii) promptly notify the Rent Indenture Trustee and the Servicer of any notice to fail to qualify as "rents from real property" within the meaning of Section 856(d) any of the CodeIssuers of any material default under the Management Agreement of which it is aware. If any of the Issuers shall default in the performance or observance of any material term, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will have on the part of the Issuers to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Indenture or the other Transaction Documents, and without waiving or releasing the Issuers from any of their obligations hereunder or under the Management Agreement, the Issuers grant the Indenture Trustee or the Servicer on its behalf the right, upon prior written notice to the Issuers, to pay any sums and to perform any act as may be reasonably appropriate to cause such an effect, then Tenant will modify the terms material conditions of the Management Agreement so on the part of the Issuers to be performed or observed; provided, however, that neither the Indenture Trustee nor the Servicer shall be under any obligation to pay such sums or perform such acts.
(b) The Issuers shall not surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other management agreement with any new Manager, or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of prior written notice to each Rating Agency and written consent of the reasonable opinion Servicer; provided, however, that written consent of Landlord and its counsel, does the Servicer is not cause required to the Rent to be so characterized extent an Acceptable Manager replaces the existing Manager under the Codeexisting Management Agreement (other than as modified by any non-material change). Landlord shall have no right If the Servicer consents to enforce Tenant's rights under any the appointment of a new Manager, or if an Acceptable Manager becomes the Manager, such Management Agreementnew Manager, except or the Acceptable Manager, as the case may be, and the Issuers shall, or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the termination thereof following termination form previously delivered by the Manager as of the Closing Date.
(c) The Servicer shall have the right to terminate the Manager pursuant to Section 20 of the Management Agreement.
(d) The Indenture Trustee and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or to utilize, at its own expense (except to the extent that a particular expense is expressly provided herein to be an Advance or an Additional Issuer Expense) other agents or attorneys), in performing certain of its obligations under this Indenture and the other Transaction Documents, including, without limitation, Tower Site management, operation, and maintenance; Tower Site dispositions, releases, terminations, additions, and substitutions; application of funds pursuant to Article V of this AgreementIndenture; and confirmation of compliance by the Issuer Parties with the provisions hereunder and under the other Transaction Documents; and neither the Indenture Trustee nor the Servicer shall have any liability with respect to utilizing and relying upon the Manager as described above.
Appears in 1 contract
Management Agreement. Except as (a) Borrower shall cause Mortgage Borrower to (i) diligently and promptly perform, observe and enforce all of the terms, covenants and conditions of each Management Agreement on the part of Mortgage Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower under each Management Agreement, (ii) promptly notify Lender of any default under the Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Mortgage Borrower under any Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower or Mortgage Borrower receives which indicates that any Manager is terminating the applicable Management Agreement or that any Manager is otherwise provided below, Tenant discontinuing its management of the applicable Individual Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by each Manager under each Management Agreement.
(b) Borrower shall not enter intocause Mortgage Borrower to, amendwithout the prior written consent of Lender, surrender (i) surrender, terminate or modify cancel any Management Agreement, consent to any assignment of any Manager’s interest under such Management Agreement or otherwise replace any Manager or renew or extend any Management Agreement (exclusive of, in each case, any automatic renewal or extension in accordance with a Person its terms) or enter into any other new or replacement management agreement with respect to any Individual Property; provided, however, that is not Borrower may (or may cause Mortgage Borrower to) replace any Manager and/or consent to the assignment of such Manager’s interest under the applicable Management Agreement, in each case, in accordance with the applicable terms and conditions hereof and of the other Loan Documents; (ii) reduce or consent to the reduction of the term of any Management Agreement; (iii) increase or consent to the increase of the amount of any charges under any Management Agreement; or (iv) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, any Management Agreement in any material respect. In no instance shall management fees under any Management Agreement, when aggregated with management fees under the Special Management Agreement, exceed an Affiliated Person amount equal to the product of (1) 3% and (2) Gross Rents plus Operating Income.
(c) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, if Mortgage Borrower shall default beyond the expiration of any applicable notice and cure period in the performance or observance of any material term, covenant or condition of any Management Agreement on the part of Mortgage Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 to Marriott or Crestline without Landlord's prior written consent, which consent may be given appropriate to cause all the terms, covenants and conditions of such Management Agreement on the part of Mortgage Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under any Management Agreement shall be kept unimpaired and free from default. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon any applicable Individual Property at any time and from time to time for the purpose of taking any such action. If any Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under any Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon. Tenant may Borrower shall (and shall cause Mortgage Borrower to) notify Lender if any Manager sub-contracts to a third party or an Affiliate any or all of its management responsibilities under any Management Agreement.
(d) Borrower shall, from time to time, use commercially reasonable efforts to cause Mortgage Borrower to obtain from each Manager under each Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of such Management Agreement as may be reasonably requested by Lender. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of any Management Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and, subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney in fact (exercisable upon the occurrence and during the continuance of an Event of Default) to exercise any such option in name of and upon behalf of Borrower to cause Mortgage Borrower to exercise each individual option, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(e) In the event that any Management Agreement is scheduled to expire at any time during the term of the Loan, Borrower shall submit (or cause Mortgage Borrower to submit) to Lender by no later than 30 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and subject conditions hereof. The failure to submit the same within such time-frame shall, at Lender’s option, constitute an immediate Event of Default.
(f) Borrower shall have the right to cause Mortgage Borrower to replace any Manager or consent to the Owner assignment of any Manager’s rights under the applicable Management Agreement, in each case, to the extent that (i) no Event of Default has occurred and is continuing, (ii) Lender receives at least sixty (60) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement. No Manager shall (and Borrower shall not permit (and shall not allow Mortgage Borrower to permit) any Manager to) resign as Manager or otherwise cease managing any Individual Property until a New Manager is engaged to manage such Individual Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(g) Without limitation of the foregoing, if any Management Agreement is terminated or expires (including, without Landlord's consentlimitation, enter intopursuant to the applicable Subordination of Management Agreement), and/or terminatecomes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its terms), ceases to be in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender, at its option, may require Borrower to cause Mortgage Borrower to engage, in accordance with their respective termsthe terms and conditions set forth herein and in the applicable Subordination of Management Agreement, Management Agreements with its Affiliated Persons or Marriott a New Manager to manage the applicable Individual Property, which such New Manager shall (i) to the extent a Trigger Period is continuing and also with other Persons if opted by Lender, selected by Lender and (ii) be a Qualified Manager and shall be engaged pursuant to Sections 4.1.1(ba Qualified Management Agreement.
(h) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager, Borrower and Mortgage Borrower shall execute a Subordination of Management Agreement in the form required by Lender (with such changes thereto as may be required by the Rating Agencies), 14.3(c(ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and 0 delegating operational authority new management agreement and (iii) if requested by Lender, Borrower shall deliver to Lender evidence that the engagement of such New Manager will not result in a Property Document Event.
(i) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s or Mortgage Borrower’s receipt of any early termination fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower shall hold (and shall cause Mortgage Borrower to hold) any such termination fee or payment in trust for the day-to-day operation benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for replacing such Manager and/or for payment of the Leased Property Debt or otherwise in connection with the Loan evidenced by the Note, as so determined by Lender). The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to Manager provided that any “cap” or similar limit on the amount of Reserve Funds held by Lender.
(j) Any sums expended by Lender pursuant to this Section shall bear interest at the Default Rate from the date such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant cost is incurred to the Manager other than the System feedate of payment to Lender, shall be subordinate deemed to constitute a portion of the Lease and all amounts due from Tenant to Landlord under the LeaseDebt, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only secured by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms lien of the Management Pledge Agreement and the other Loan Documents and shall not, in Landlord's be immediately due and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed payable upon demand by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLender therefor.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Seller and Manager are parties to that certain Management Agreement with a Person that dated as of November 12, 1999 (the "Management Agreement"). This Agreement is not an Affiliated Person as expressly subject to Marriott and conditioned upon all of Manager's rights under the Management Agreement, including, without limitation, the right of Manager to elect to either (i) consent to the sale of the Property and to the assignment of the Management Agreement to Purchasers, or Crestline without Landlord(ii) terminate the Management Agreement. Pursuant to Section 10.02 of the Management Agreement, Seller shall notify Manager of this Agreement and Manager shall then have up to thirty (30) days to make its election. Anything in this Agreement to the contrary notwithstanding, Seller's prior written consentobligation to perform under this Agreement is expressly subject to satisfaction of the conditions set forth in Section 8.2 of this Agreement. In this regard, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to timePurchaser shall use commercially reasonable, diligent efforts, and Seller shall reasonably cooperate with Purchaser in accordance with Purchaser's efforts, to obtain the written consent of Manager to a new management agreement to be entered into between Purchaser and subject Manager on terms reasonably acceptable to the Owner AgreementPurchaser, without Landlord's consentprovided, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement new management agreement shall provide (a) that be accompanied by a termination of the Management Agreement that shall result in the satisfaction of the conditions set forth in Section 8.2. Purchaser acknowledges that it is familiar with Manager and is not relying on Seller for information concerning the Manager or its practices or experience in the hospitality business. No agreement reached between Manager and Purchaser shall be effective unless and until the Closing occurs; if the Closing does not occur for any reason, any such agreement shall be void and of no effect whatsoever. Any and all amounts termination fees or charges due from Tenant to upon or as the Manager other than result of the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the early termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's be the sole responsibility of Purchaser and its counsel's reasonable opinion, cause paid by Purchaser at or prior to Closing. Seller shall not be required to undertake any liability and shall not be required to incur any material monetary expense (including the Rent to fail to qualify as "rents payment of any termination fees or charges resulting from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms early termination of the Management Agreement will have such an effect, then Tenant will modify Agreement) in connection with the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementforegoing.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Apple Hospitality Five Inc)
Management Agreement. Except (a) B▇▇▇▇ acknowledges and agrees (and has received written evidence, prior to the date hereof) that Manager has waived the Manager Purchase Option pursuant to that certain letter from Manager dated March 26, 2025 (the “Manager Waiver”). Seller has requested, or promptly following the Effective Date, Seller shall request, from Manager an estoppel certificate from Manager (“Manager Estoppel”) substantially in the form attached hereto as otherwise provided Exhibit R, to be delivered by Manager prior to the Closing Date. In the event the Manager Estoppel or the Manager Consent (as that term is defined in Section 14.2(b) below) is not obtained on or prior to the scheduled Closing Date, Tenant then either Seller or Buyer may elect to extend the Closing up to 45 additional days (such date, the “Extended Deadline”) in order to allow the parties to obtain the same, in which event Buyer shall not enter into, amend, surrender or modify be obligated to deposit any Management Agreement Additional E▇▇▇▇▇▇ Money. B▇▇▇▇’s receipt of the Manager Estoppel shall not be a condition to Buyer’s obligation to close.
(b) Buyer shall diligently pursue and Seller shall reasonable cooperate with a Person that is not an Affiliated Person as Buyer in connection with (x) the consent required from Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and the transfer of the Property subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(cAgreement (the “Manager Consent”) and 0 delegating operational authority for (y) either (1) the day-to-day operation of the Leased Property assignment by Seller to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms Buyer of the Management Agreement shall notor (2) if required by Manager, in Landlord's execution by B▇▇▇▇ and its counsel's reasonable opinion, cause Manager of a replacement management agreement (“Replacement Management Agreement”) substantially on the Rent to fail to qualify same terms and conditions as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effectbeing replaced. In connection with obtaining the Manager Consent, then Tenant will modify Buyer shall provide to Manager the terms information reasonably required for a proposed assignee under Section 10.02 of the Management Agreement so that the Management Agreement, including without limitation disclosure information reasonably requested by Manager sufficient for Manager to assess the business reputation of Buyer, identification in reasonable detail of the reasonable opinion direct and indirect owners of Landlord Buyer, and its counsel, does the latest audited and unaudited financials of Buyer. B▇▇▇▇’s receipt of the Manager Consent shall not cause the Rent be a condition to be so characterized under the Code. Landlord shall have no right B▇▇▇▇’s obligation to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementclose.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ryman Hospitality Properties, Inc.)
Management Agreement. Except as otherwise provided below(a) Borrower shall (i) diligently perform, Tenant shall not enter intoobserve and enforce all of the terms, amend, surrender or modify any covenants and conditions of the Management Agreement with on the part of Borrower to be performed, observed and enforced which are necessary to keep unimpaired the rights of Borrower under the Management Agreement and (ii) promptly notify Lender of the giving of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed and deliver to Lender a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's true copy of each such notice. Without Lender’s prior written consent, Borrower shall not surrender the Management Agreement, consent to the assignment by Manager of its interest under the Management Agreement (unless such assignment is to an Affiliate of Borrower which is Controlled by Sponsor and such Affiliate enters into an Assignment of Management Agreement in form and substance substantially similar to the Assignment of Management Agreement executed by Manager as of the Closing Date), or terminate or cancel the Management Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing, and Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement or to terminate, cancel, materially modify, materially change, materially supplement, materially alter or materially amend the Management Agreement in any respect, and any such surrender of the Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement without the prior consent of Lender shall be void and of no force and effect.
(b) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 given appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon.
(c) Borrower shall notify Lender if Manager sub-contracts to a third party any or all of its management and/or leasing responsibilities under the Management Agreement. Tenant may Borrower shall, from time to time, and in accordance with and subject use commercially reasonable efforts to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to obtain from Manager provided that any such Management Agreement shall provide (a) that under the Management Agreement and all amounts due from Tenant such certificates of estoppel with respect to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only compliance by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), Borrower with the terms of the Management Agreement as may be reasonably requested by Lender. Borrower shall not, not be required to deliver the above required estoppel more often than once in Landlord's any calendar year except in connection with any Secondary Market Transaction or if an Event of Default has occurred and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(dis continuing.
(d) Without limitation of the Codeforegoing, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effectis terminated pursuant to the Assignment of Management Agreement or for any other reason, then Tenant will modify Lender, at its option, may require Borrower to engage, in accordance with the terms and conditions set forth in the Assignment of the Management Agreement so that the Management Agreement, a new manager (the “New Manager”) to manage the Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Borrower pursuant to a written management agreement that complies with the terms hereof and of the Assignment of Management Agreement and is otherwise satisfactory to Lender in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the reasonable opinion form then used by Lender. Without limitation of Landlord and its counselthe foregoing, does not cause the Rent if required by Lender, Borrower shall, as a condition precedent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any Borrower’s engagement of such Management AgreementNew Manager, except obtain a Rating Agency Confirmation with respect to such New Manager and management agreement. To the termination thereof following termination extent that such New Manager is an Affiliated Manager, Borrower’s engagement of this Agreementsuch New Manager shall be subject to Borrower’s delivery to Lender of a New Non-Consolidation Opinion with respect to such New Manager and new management agreement.
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Management Agreement. Except as otherwise provided below(a) As of the Execution Date, Tenant shall not enter into, amend, surrender or modify any the Management Agreement shall be in full force and effect and Manager shall have no defenses or claims against Borrower with a Person that is not an Affiliated Person as to Marriott respect thereto. Any new or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority subsequent agreements providing for the day-to-day management and operation of the Leased Property Fairmont Hotel shall be subject to Manager provided that any such Lender’s approval.
(b) The Management Agreement shall provide be subordinated to the lien of the Mortgage pursuant to an Assignment and Subordination of Management Agreement and Consent of Manager dated as of the date of this Mortgage, and further shall be assigned to Lender as additional security for the Loan.
(ac) that Notwithstanding any provision to the contrary contained herein or in the other Loan Documents, the Borrower and Operating Lessee may not amend, modify, supplement, alter or waive any right under the Management Agreement without the written consent of Lender, provided however, without any requirement for consent, Borrower and Operating Lessee may agree to any nonmaterial modification, change, supplement, alteration or amendment to the Management Agreement and all amounts waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect the cash management procedures set forth in the Management Agreement or the Loan Documents, decrease the cash flow of the Property, adversely affect the marketability of the Property, change the definitions of “default” or “event of default,” change the definitions of “operating expense” or words of similar meaning to add additional items to or delete items from such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or words of similar meaning so as to reduce the payments due from Tenant the Borrower thereunder, change the definition of “debt service amount” or “owner indebtedness”, or “net cash flow” or “net operating cash flow”, or words of similar meaning, change the timing of remittances to the Manager other than Borrower or Operating Lessee thereunder, change the System feepriority of distributions of “net cash flow”, shall be subordinate or words of similar meaning, to Borrower or Operating Lessee thereunder, increase or decrease reserve requirements, change the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms term of the Management Agreement shall not, or increase any Management Fees (as defined in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized ) payable under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement.
(d) Notwithstanding the foregoing, except Borrower or Operating Lessee may enter into a new Management Agreement approved by Lender with respect an Acceptable Manager (as hereinafter defined).
(i) For purposes of this Section, and subject to subsection (iii) below, “Acceptable Manager” shall mean (a) the current Manager and current brand as of the Execution Date and, at any time prior to two years after the Execution Date, the property managers and brands of Acceptable Manager listed in (ii) below, provided (x) each such property manager or brand continues to be controlled by substantially the same Persons Controlling (as defined in Section 10.4 (d)) such property manager or brand as of the Execution Date (or if such manager is a publicly traded company, such manager continues to be publicly traded on an established securities market), and (y) such property manager has under management, at the time of its engagement as manager, not fewer than 20 first class full service resort or business hotel properties (excluding the Property) containing not fewer than 5,000 hotel rooms in the aggregate; (b) during such two year period, any Close Affiliate (as defined in Section 10.4(d)) of any of the foregoing Persons so long as such Close Affiliate continues to be Controlled by substantially the same Persons Controlling such Close Affiliate as of the Execution Date (or if such close affiliate is a publicly traded company, such Close Affiliate continues to be publicly traded on an established securities market); or (c) any other reputable and experienced professional hotel management company (A) which, or a Close Affiliate of which, shall have at least five years’ experience in the management of hotel properties substantially similar in size and complexity to the termination thereof following termination Property, (B) which, or a Close Affiliate of this Agreementwhich, shall have under management, at the time of its engagement as Manager, not fewer than 20 first class full service resort or business hotel properties (excluding the Property) containing not fewer than 5,000 hotel rooms in the aggregate, and (C) approved in writing by Lender.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. Except as otherwise provided below, Tenant (a) The Company shall not enter into, amend, surrender or modify any into the Management Agreement for the Property with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, Property Manager (which consent may Management Agreement shall be given or withheld in Landlord's sole but reasonable discretion. Tenant may updated and supplemented from time to time, and in accordance with and subject ) pursuant to which Property Manager will provide the management services described therein to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(cCompany.
(b) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such The Management Agreement shall provide (a) that be terminable in the event of an exercise of rights under Section 14, or by the Company only "for cause," as defined in the Management Agreement and all amounts due on written notice from Tenant the Managers (for the avoidance of doubt, the exercise of rights by either party under Section 14 shall not be a Major Decision). The Managers acknowledge that a third party lender may require the Management Agreement to be terminable on thirty (30) days' notice but the Manager other than the System fee, Managers shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and not exercise such right except (bi) for cause or (ii) as required by such lender; provided, however, if during the termination thereof upon the termination term of this Agreement, and providedan Affiliate of TSC enters into a management agreement with the Property Owner to manage the Property ("TSC Affiliate Management Agreement"), furtherBluerock may, that Landlord shallwithout any notice to or consent or approval from TSC, if it succeeds terminate the TSC Affiliate Management Agreement (i) for cause or (ii) as required by such lender. Any delegation of the responsibilities of Property Manager or the subcontracting for such services will be subject to Tenant's rights under any management agreementManagers' prior written consent. Separate agreements may also be entered into with TSC, Bluerock, their respective Affiliates, or with third parties for certain services to be provided to the Company, including leasing, construction management, property management, asset management, technology services, etc. Such arrangements shall be at market rates, and shall be entered into only with the prior written approval of the Managers, consistent with an approved budget and business plan for each management agreement asset. Unless otherwise agreed, all such contracts will be payable on a monthly basis and will be terminable upon thirty (30) day's notice for any reason or no reason. On the date the Company or its Subsidiary shall so provideacquire the Property (the "Acquisition Date"), Trade Street Investments Advisors, LLC or its designee shall earn and the Company shall pay (or cause its Subsidiary to pay) an Acquisition Commission to Trade Street Investments Advisors, LLC or such designee. The cost to the Company of the Acquisition Commission shall be bound only borne equally by Bluerock and TSC, and shall be included in their respective Capital Contributions. Upon the sale of the Property by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed Company (and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(cso long as Bluerock has been paid its Preferred Return), Trade Street Investments Advisors, LLC shall earn and the terms Company shall pay to Trade Street Investments Advisors . a real estate commission (the “Disposition Commission”) in an amount equal to the contract sales price of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed Property multiplied by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementone percent (1.0%).
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) Provided no Event of Default is continuing, each Borrower shall be permitted to self-manage the Individual Property that it owns provided, that, in the event such Borrower retains a Manager after the Closing Date, such Manager shall be a Qualified Manager under a management agreement that would satisfy the requirements of an Acceptable Replacement Management Agreement.
(b) In the event a Borrower retains a Manager for the management of one or more Individual Properties (including those in effect as of the Closing Date), Borrower shall (i) diligently perform, observe and enforce all of the material terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed, observed and enforced to the end that all reasonable actions in Borrower’s control shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement and all amounts due from Tenant (ii) (x) promptly notify Lender of the giving of any notice in writing to Borrower of any material default by Borrower, beyond any applicable notice and cure periods, in the Manager other than performance or observance of any of the System feeterms, shall covenants or conditions of the Management Agreement on the part of Borrower to be subordinate to the Lease performed and all amounts due from Tenant to Landlord under the Lease, observed and (by) for the termination thereof upon the termination deliver to Lender a true copy of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consentedsuch notice. Without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed, except in respect Borrower shall not (A) surrender the Management Agreement, consent to the assignment by Manager of any its interest under the Management Agreement entered into pursuant to Section 14.3(c)Agreement, the terms of or terminate or cancel the Management Agreement shall notunless, in Landlord's and its counsel's reasonable opinioneach case, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of Borrower shall have replaced the Management Agreement will have such with an effect, then Tenant will modify the terms of the Acceptable Replacement Management Agreement so that or (B) modify, change, supplement, alter or amend the Management Agreement, in any material respect, without the reasonable opinion prior consent of Landlord and its counselLender, does such consent not cause the Rent to be so characterized unreasonably withheld, conditioned or delayed. Any surrender, termination or cancellation by Borrower of the Management Agreement (other than in accordance with Section 4.15(d) below) without the prior written consent of Lender shall be void and of no force and effect unless Borrower shall have replaced the Management Agreement with an Acceptable Replacement Management Agreement in accordance with Section 4.15(d) below. The requirements of this clause (b) shall be subject in all respects to Borrower’s right to self-manage the related Individual Property as permitted pursuant to clause (a) above and any action taken in connection with such self-management shall not be deemed to violate this clause (b).
(c) During the continuance of an Event of Default under the Code. Landlord Loan Documents, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 reasonably necessary to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken by Lender in good faith, in reliance thereon except for any action taken as a result of Lender’s gross negligence or willful misconduct.
(d) Borrower shall have the right to enforce Tenant's replace Manager and either consent to the assignment of Manager’s rights under any Management Agreement or enter into an Acceptable Replacement Management Agreement with such replacement Manager, in each case, to the extent that (i) no Event of Default has occurred and is continuing, (ii) Lender receives at least thirty (30) days’ prior written notice of the same, and (iii) the applicable New Manager is a Qualified Manager engaged pursuant to an Acceptable Replacement Management Agreement (or Lender otherwise consents (not to be unreasonably withheld, conditioned or delayed) to such replacement New Manager). The requirements of this clause (d) shall be subject in all respects to Borrower’s right to self-manage the related Individual Property as permitted pursuant to clause (a) above and any action taken in connection with such self-management shall not be deemed to violate this clause (d).
(e) Without limitation of the foregoing, if the Management Agreement is terminated pursuant to the Assignment of Management Agreement or for any other reason or if there is a change in Control of the Manager (which results in the Manager no longer being a “Qualified Manager”), then Lender, at its option, may require Borrower to engage, in accordance with the terms and conditions set forth in the Assignment of Management Agreement, except a new manager (the “New Manager”) to manage the Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Borrower pursuant to an Acceptable Replacement Management Agreement within forty-five (45) days of such termination of the Management Agreement or change in Control of Manager (which results in the Manager no longer being a “Qualified Manager”). Without limitation of the foregoing, and notwithstanding anything herein to the contrary, if required by Lender, Borrower shall, as a condition precedent to Borrower’s engagement of any New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and Acceptable Replacement Management Agreement. To the termination thereof following termination extent that such Manager is an Affiliated Manager, Borrower shall deliver a New Non-Consolidation Opinion to Lender and the applicable Rating Agencies with respect to such New Manager and new management agreement. The requirements of this Agreementclause (e) shall be subject in all respects to Borrower’s right to self-manage the related Individual Property as permitted pursuant to clause (a) above and absent a continuing Event of Default, any action taken in connection with such self-management shall not be deemed to violate this clause (e).
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed (I) with respect to the Properties managed by Six Continents Hotels, the sum of (x) five percent (5%) of total room revenue and (y) two percent (2%) of total revenue; provided, however, Six Continents Hotels shall not charge any additional franchise fees in connection with such Properties and (II) with respect to the Properties managed by any Person other than Six Continents Hotels, four percent (4%) of the gross income derived from the Property (excluding any incentive management fees which are subordinate to the Loan). Borrower shall cause Mortgage Borrower or Operating Lessee to (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement, on the part of Operating Lessee to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Operating Lessee under the Management Agreement and all amounts due from Tenant (ii) promptly notify Lender of the giving of any notice by Manager to Operating Lessee of any default by Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall cause Mortgage Borrower and/or Operating Lessee to not surrender the Management Agreement, consent to the assignment by the Manager other than of its interest under the System feeManagement Agreement, shall be subordinate or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing. Subject to the Lease and all amounts due from Tenant rights of Mortgage Lender, if Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Operating Lessee to Landlord under be performed or observed, then, without limiting the Lease, and (b) for generality of the termination thereof upon the termination other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Borrower shall cause Mortgage Borrower to permit Lender 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 the Management Agreement on the part of Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, furtherhowever, that Landlord shallLender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender by written notice to Borrower to have 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 the Manager shall deliver to Lender a copy of any notice sent to Borrower or Mortgage Borrower and/or Operating Lessee of default under the Management Agreement, if it succeeds such notice shall constitute full protection to Tenant's rights under Lender for any management agreementaction taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower and/or Operating Lessee to not, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheldpermit the Manager to, conditioned sub-contract all or delayed and provided further that, except in respect any material portion of any its management responsibilities under the Management Agreement entered into pursuant to Section 14.3(c), a third-party without the prior written consent of Lender. Borrower shall cause Operating Lessee to request of Manager and deliver to Lender upon receipt such certificates of estoppel with respect to compliance by Operating Lessee with the terms of the Management Agreement as may be requested by Lender. Borrower shall notcause Mortgage Borrower and/or Operating Lessee to exercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have to the extent required to continue it in full force and effect until after the Maturity Date. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such an effectcost is incurred to the date of payment to Lender, then Tenant will modify (ii) shall be deemed to constitute a portion of the terms Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, Borrower shall cause Operating Lessee, upon the request of Lender and in accordance with the provisions of the applicable Subordination of Management Agreement, to terminate the Management Agreement so that and replace the Manager, without penalty or fee, if at any time during the Loan:
(a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default or (c) there exists an event of default by Manager under the Management Agreement. At such time as the Manager may be removed, in provided no Event of Default has occurred, a Qualified Manager may be selected by Mortgage Borrower and/or Operating Lessee to assume management of the reasonable opinion of Landlord and its counsel, does not cause the Rent applicable Individual Property pursuant to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such a Replacement Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Management Agreement. Except as otherwise provided below, Tenant (a) Borrower shall not enter into, amend, surrender or modify any Management Agreement with engage a Person property manager that is not an Affiliated Person as to Marriott or Crestline Approved Manager without Landlord's Lender’s prior written consent. In the event that Borrower has engaged a Qualified Manager (that is not an Approved Manager) and thereafter, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and Lender determines that the Property is not being managed in accordance with and subject generally accepted management practices for properties similar to the Owner Property, Lender shall deliver written notice thereof to Borrower, which notice shall specify with particularity the grounds for Lender’s determination. If Lender determines that the conditions specified in Lender’s notice are not remedied to Lender’s satisfaction by Borrower within thirty (30) days from receipt of such notice or that Borrower has failed to diligently undertake correcting such conditions within such thirty (30) day period, or if an Event of Default has occurred and is continuing, (i) Borrower shall, at Lender’s direction, engage a Qualified Manager (that is not an Approved Manager), and enter into a property management agreement acceptable to Lender in all respects with such Qualified Manager (the “Management Agreement”), (ii) Borrower and such Qualified Manager shall execute an agreement acceptable to Lender conditionally assigning Borrower’s interest in such management agreement to Lender and subordinating such Qualified Manager’s right to receive fees and expenses under such management agreement while the Debt remains outstanding, substantially in the form attached hereto as Exhibit E (“Assignment of Management Agreement”), and (iii) Borrower shall comply with subsections (b) and (c) below. Notwithstanding the forgoing, the Property may be managed by an Approved Manager without the prior written consent of Lender; provided, however, that Borrower has obtained prior written consent of Lender with respect to the Management Agreement between Borrower and such Approved Manager, and has executed and delivered an Assignment of Management Agreement.
(b) Except during any period of time where Borrower is self-managing the Property, the Property shall be operated under the terms and conditions of the Management Agreement. In no event shall the management fees under the Management Agreement exceed four percent (4%) of the gross income derived from the Property. Borrower shall (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott on the part of Borrower to be performed and also with other Persons pursuant observed to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation end that all things shall be done which are necessary to keep unimpaired the rights of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that Borrower under the Management Agreement and all amounts due from Tenant (ii) promptly notify Lender of the giving of any notice by the Manager to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by Manager other than of its interest under the System feeManagement Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing, unless following such surrender, assignment or termination, the Property shall be subordinate operated by an Approved Manager or other Qualified Manager pursuant to a Replacement Management Agreement. Borrower hereby assigns to Lender as further security for the Lease payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all amounts due from Tenant the rights, privileges and prerogatives of Borrower to Landlord under surrender the LeaseManagement Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, in any respect, and (b) for any such surrender of the termination thereof upon Management Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment of the termination Management Agreement, without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and providedwithout waiving or releasing Borrower from any of its obligations hereunder, furtherLender 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 the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that Landlord shallthe rights of Borrower in, if it succeeds to Tenant's rights and under the Management Agreement shall be kept unimpaired and free from default. Lender and any management agreementPerson designated by Lender shall have, and each are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management 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. Borrower shall not, and shall not permit the Manager to, sub-contract any or all of its management agreement shall so provide, be bound only by responsibilities under the last management agreement or amendment thereto Management Agreement to which it consenteda third party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, conditioned or delayed and provided further thatfrom time to time, except in obtain from the Manager such certificates of estoppel with respect of any Management Agreement entered into pursuant to Section 14.3(c), compliance by Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall notexercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an effectinterest. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, then Tenant will modify (ii) shall be deemed to constitute a portion of the terms Debt, (iii) shall be secured by the lien of the Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(c) Without limitation of the foregoing, Borrower, upon the request of Lender, shall (i) in the event that the Property is subject to a Management Agreement or a Replacement Management Agreement, terminate such Management Agreement or Replacement Management Agreement and replace the Manager, without penalty or fee, with a Qualified Manager (that is not Approved Manager) pursuant to a Replacement Management Agreement, or (ii) in the event that the Property is self-managed by Borrower, enter into a Replacement Management Agreement with a Qualified Manager (that is not an Approved Manager), in each case, to assume management of the Property, if at any time during the Loan: (a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, or (c) there exists a default by Manager (other than an Approved Manager) under the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord beyond any applicable notice and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementcure periods.
Appears in 1 contract
Management Agreement. Except as otherwise provided below(a) Each Obligor shall (i) perform and observe all of the material terms, Tenant shall not enter into, amend, surrender or modify any covenants and conditions of the Management Agreement with a Person that on the part of such Obligor to be performed and observed, (ii) promptly notify the Indenture Trustee and the Servicer of any material default under the Management Agreement of which it is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to timeaware, and (iii) prior to termination of the Manager in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement, to renew the Management Agreement prior to each expiration date thereunder in accordance with its terms. If any Obligor shall notdefault in the performance or observance of any material term, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will on the part of such Obligor to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Indenture or the other Transaction Documents, and without waiving or releasing such Obligor from any of its obligations hereunder or under the Management Agreement, the Indenture Trustee or the Servicer on its behalf, shall have the right, upon prior written notice to such an effectObligor, then Tenant will modify the terms to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement so on the part of such Obligor to be performed or observed; provided, however, that neither the Indenture Trustee nor the Servicer will be under any obligation to pay such sums or perform such acts.
(b) The Obligors shall not surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, in or enter into any other Management Agreement with any new Manager, other than an Acceptable Manager, or consent to the reasonable opinion assignment by the Manager of Landlord and its counsel, does not cause the Rent to be so characterized interest under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except other than to an Acceptable Manager. If at any time an Acceptable Manager shall become the Manager, the Obligors shall (i) cause such Acceptable Manager, prior to commencement of its duties as Manager, to enter into a subordination of management agreement in substantially the form delivered on the Amendment Effective Date with the Obligors, and (ii) provide written notice thereof to the Rating Agencies.
(c) The Servicer shall have the right to terminate the Management Agreement and require that the Manager be replaced with an Acceptable Manager upon the earliest to occur of any one or more of the following events: (i) the declaration of an Event of Default, (ii) the DSCR is less than 1.10 to 1.00 as of the end of any calendar quarter and the Servicer reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of the Manager rather than factors affecting the Asset Entities’ industry generally, (iii) the Manager has engaged in fraud, gross negligence or willful misconduct in connection with its performance under the Management Agreement or (iv) default on the part of the Manager in the performance of its obligations under the Management Agreement, and, with respect to the termination events specified in clauses (iii) and (iv) such event could reasonably be expected to have a Material Adverse Effect and remains unremedied for thirty (30) days after the Manager receives written notice thereof following termination from the Servicer (provided, however, if such default is reasonably susceptible of cure, but not within such 30-day period, then the Manager may be permitted up to an additional sixty (60) days to cure such default provided that the Manager diligently and continuously pursues such cure). The Indenture Trustee and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or to, at its own expense (except to the extent that a particular expense is expressly provided herein to be an Advance or an Additional Issuer Expense) utilize other agents or attorneys), in performing certain of its obligations under this AgreementIndenture and the other Transaction Documents, including, without limitation, Tower Site management, operation, and maintenance; Tower Site dispositions, releases and substitutions; and confirmation of compliance by the Issuers with the provisions hereunder and under the other Transaction Documents and neither the Indenture Trustee nor the Servicer shall have any liability with respect thereto.
Appears in 1 contract
Sources: Indenture (American Tower Corp /Ma/)
Management Agreement. Except as otherwise provided belowLandlord shall have the right to approve the initial Manager and the form of the Management Agreement, in its sole and absolute discretion. Tenant shall, at its sole cost and expense, perform all of the obligations of "Owner" under the Management Agreement. Tenant or Manager shall be the employer with respect to any and all employees located at the Leased Property. Tenant shall, at all times, direct the Manager to perform all of the Manager's obligations under the Management Agreement. Tenant shall not enter into, amend, surrender amend or modify any the Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent shall not unreasonably be withheld, delayed or conditioned. Tenant shall not take any action, grant any consent, or, except as provided in the Management Agreement, permit any action under the Management Agreement without the prior written consent of Landlord, which consent will not be unreasonably withheld. Except as provided in the Management Agreement, Tenant shall not, without the Landlord's written approval, which approval may be given withheld or withheld granted in Landlord's sole but reasonable and absolute discretion, agree to: (i) any change in the Manager; (ii) any change in the Management Agreement; (iii) terminate the Management Agreement; or (iv) permit the Manager to assign the Management Agreement. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation If Landlord shall perform any obligations of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that "Owner" under the Management Agreement and all amounts due from Tenant (which Landlord may do subject to Section 12.5), the Manager other than the System fee, cost of such performance shall be subordinate to the Lease and all amounts due from payable, upon demand, by Tenant to Landlord under with interest accruing from the Lease, date which is ten (10) days after the demand date at the Overdue Rate and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right the same rights and remedies for failure to enforce pay such costs on demand as for Tenant's rights under any such Management Agreement, except with respect failure to the termination thereof following termination of this Agreementpay Minimum Rent.
Appears in 1 contract
Management Agreement. Except as otherwise provided below(a) CCL shall, Tenant and shall not enter intocause its Subsidiaries to, amend, surrender or modify cause the Manager (including any replacement manager that is an Acceptable Manager) to manage the Properties in accordance with the Management Agreement in all material respects. CCL shall, and shall cause its Subsidiaries to, (i) perform and observe all of the material terms, covenants and conditions of the Management Agreement on the part of CCL and each Subsidiary required to be performed and observed and (ii) promptly notify the Trustee of any notice to any of CCL or its Subsidiaries of any material default under the Management Agreement of which it is aware.
(b) Holders of a majority in principal amount of the outstanding Notes shall have the right to remove the Manager and replace such Manager with a Person that to be selected by CCL and reasonably acceptable to the Trustee (or, if an Event of Default has occurred and is not then continuing, selected by the Trustee) and without payment of any termination fee, upon the earliest to occur of any one or more of the following events: (i) an Affiliated Person as Event of Default has occurred and is then continuing, (ii) 30 days after notice from Trustee to Marriott CCL if the Manager has engaged in fraud, gross negligence or Crestline without Landlord's prior written consentwillful misconduct arising from or in connection with its performance under the Management Agreement or (iii) the Manager defaults under the Management Agreement, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time such default is reasonably likely to timehave a Material Adverse Effect, and in accordance with and subject such default remains unremedied for 30 days following written notice to the Owner AgreementManager.
(c) Notwithstanding any provision to the contrary herein, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons the Trustee shall have no duty or Marriott and also with other Persons pursuant responsibility to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for monitor the day-to-day operation performance of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that under the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect deemed to have knowledge of any Management Agreement entered into pursuant aspect of such performance whatsoever unless a Responsible Officer of the Trustee has actual knowledge thereof and the Trustee shall have no obligation to Section 14.3(c)take any action with respect to the Manager, the terms of the Management Agreement or the Manager’s performance thereunder unless and until, subject to Section 6.05, the Trustee shall not, have been directed in Landlord's and its counsel's reasonable opinion, cause writing to do so by the Rent to fail to qualify as "rents from real property" within the meaning Holders of Section 856(d) a majority in principal amount of the Code, it being agreed outstanding Notes. In no event shall the Trustee have any obligation to determine whether any default by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that Manager under the Management Agreement, in the reasonable opinion of Landlord and its counsel, does whether or not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect known to the termination thereof following termination of this AgreementTrustee, is reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Management Agreement. Except as otherwise provided below(a) As of the Closing Date, Tenant there are no Management Agreements. If, at any time, Borrower desires to enter into a Management Agreement with respect to any Individual Property, Borrower shall not do so in accordance with the terms and conditions of Section 4.15(g) and (i) hereof. In the event of a Leased Fee Lease Termination, Borrower shall enter intointo a Management Agreement with respect to the Individual Property related to such Leased Fee Lease Termination in accordance with the terms and conditions of Section 4.15(g) and (i) hereof.
(b) Borrower shall (i) diligently and promptly perform, amendobserve and enforce all of the terms, surrender or modify covenants and conditions of each Management Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under such Management Agreement, (ii) promptly notify Lender of any default under any Management Agreement with beyond applicable notice and cure periods thereunder; (iii) promptly deliver to Lender a Person copy of any written notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any written notice that B▇▇▇▇▇▇▇ receives which provides that Manager is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly use commercially reasonable efforts to enforce the performance and observance of all amounts due from Tenant of the covenants required to the be performed and observed by Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the LeaseManagement Agreement.
(c) Borrower shall not, and without the prior written consent of Lender (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed), except in respect (i) surrender, terminate or cancel any Management Agreement, consent to any assignment of any Manager’s interest under the related Management Agreement or otherwise replace Manager or renew or extend any Management Agreement entered (exclusive of, in each case, any automatic renewal or extension in accordance with its terms) or enter into any other new or replacement management agreement with respect to any Individual Property; provided, however, that Borrower may replace a Manager and/or consent to the assignment of a Manager’s interest under a Management Agreement, in each case to the extent permitted by and in accordance with the applicable terms and conditions hereof and of the other Loan Documents; (ii) reduce or consent to the reduction of the term of a Management Agreement; (iii) increase or consent to the increase of the amount of any charges under a Management Agreement; or (iv) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, a Management Agreement in any material respect. To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this subparagraph (c) and Lender fails to approve or disapprove the same pursuant thereto, L▇▇▇▇▇’s approval shall be deemed given with respect to Section 14.3(cthe matter for which approval was requested.
(d) If Borrower shall default after applicable notice and cure periods in the performance or observance of any material term, covenant or condition of a Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property, subject to the rights of tenants, at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management 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, subject to the rights of tenants. Borrower shall notify Lender if Manager sub-contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement (which sub-contract shall be subject to Lender’s reasonable consent).
(e) Borrower shall, from time to time, use commercially reasonable efforts to obtain from Manager under the Management Agreement such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause as may be reasonably requested by L▇▇▇▇▇.
(f) In the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant event that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 30 days prior to such an effect, then Tenant will modify expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof.
(g) Borrower shall have the right to replace Manager or consent to the assignment of the Management Agreement so that Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and is continuing, (ii) Lender receives at least thirty (30) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event and/or any termination or cancellation of any Ground Lease or any default thereunder and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement.
(h) Without limitation of the foregoing, if the Management Agreement is terminated or expires (including, without limitation, pursuant to the Assignment of Management Agreement (as defined below)), comes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its counselterms), does not cause the Rent ceases to be so characterized under in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender, at its option, may require Borrower to engage, in accordance with the Code. Landlord shall have no right to enforce Tenant's rights under any such terms and conditions set forth herein and in the Assignment of Management Agreement, except a New Manager to manage the Property, which such New Manager shall (i) to the extent an Event of Default has occurred and is continuing and if opted by L▇▇▇▇▇, selected by Lender and subject to the reasonable approval of Borrower if Lender has not foreclosed on the Property and (ii) be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(i) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager and Borrower shall execute an assignment and subordination of Management Agreement in form and substance reasonably acceptable to Lender (with such changes thereto as may be required by the Rating Agencies) (the “Assignment of Management Agreement”), (ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and new management agreement and (iii) if requested by L▇▇▇▇▇, B▇▇▇▇▇▇▇ shall deliver to Lender an Officer’s Certificate certifying that the engagement of such New Manager will not result in a Property Document Event and/or any termination thereof or cancellation of any Ground Lease or any default thereunder.
(j) Borrower shall notify Lender in writing, within ten (10) Business Days following receipt thereof, of Borrower’s receipt of any early termination of this Agreementfee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that Borrower shall cause any such termination fee or payment to be promptly deposited into the Cash Management Account.
Appears in 1 contract
Sources: Loan Agreement (Istar Inc.)
Management Agreement. Except as otherwise provided belowAt all times hereunder, Tenant Borrower shall cause Mortgage Borrower to require the Manager of the Property to perform in all material respects in accordance with the terms of the Management Agreement and shall not enter into, materially amend, surrender modify or modify any alter the Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline the responsibilities of such Manager or the liabilities of Mortgage Borrower under the Management Agreement without Landlord's Lender’s prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time not to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed delayed. In addition, provided no Default is then continuing and provided further that, except in respect of any Management Agreement entered into pursuant upon thirty (30) days’ prior written notice to Section 14.3(cLender (or such shorter time frame as agreed to by Lender), Borrower shall have the terms of right to terminate the Management Agreement and enter into a replacement management agreement with a Qualified Manager, provided that such replacement management agreement is: (I) (i) substantially in the same form and substance as the Management Agreement delivered to Lender on or prior to the Effective Date and (ii) entered into on an arms’-length basis and otherwise on commercially reasonable terms and providing for economic terms and management fees comparable to then existing local market rates, with a management fee not in excess of three percent (3.0%) of Gross Operating Income or (II) otherwise reasonably acceptable to Lender. Borrower shall notand shall cause Mortgage Borrower to, in Landlord's execute, upon Lender’s request, an assignment of Mortgage Borrower’s rights under the Management Agreement or any replacement management agreement to Lender as additional security for Borrower’s obligations under this Agreement and its counsel's reasonable opinion, the other Loan Documents and shall cause the Rent Manager and any replacement manager to fail consent to qualify any such assignment (which consent shall include, among other things, a subordination of any of its fees or compensation provided in the applicable Management Agreement as "rents from real property" within set forth in the meaning Assignment of Section 856(dAgreements). In no event shall Manager be entitled to receive a management fee in excess of 3% of Revenues (as currently defined in the Management Agreement) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that Property (including the terms proceeds of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementbusiness interruption insurance).
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Management Agreement. Except as otherwise provided below, Tenant (A) The Borrowers shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Sites in accordance with the Management Agreement. The Borrowers shall (i) perform and subject observe all of the material terms, covenants and conditions of the Management Agreement on the part of each Borrower to be performed and observed, (ii) promptly notify Lender of any notice to any of the Owner AgreementBorrowers of any material default under the Management Agreement of which they are aware, without Landlord's consent, enter into, and/or terminate, and (iii) prior to termination of Manager in accordance with their respective termsSection 5.11(C), the Borrowers shall renew the Management Agreements Agreement prior to each expiration date thereunder in accordance with its Affiliated Persons terms. If the Borrowers shall default in the performance or Marriott and also with other Persons pursuant to Sections 4.1.1(b)observance of any material term, 14.3(c) and 0 delegating operational authority for the day-to-day operation covenant or condition of the Leased Property to Manager provided that any such Management Agreement on the part of the Borrowers to be performed or observed, then, without limiting Lender’s other rights or remedies under Loan Agreement or the other Loan Documents, and without waiving or releasing the Borrowers from any of their obligations hereunder or under the Management Agreement, Lender shall provide have the right, upon prior written notice to the Borrowers, but shall be under no obligation, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement on the part of the Borrowers to be performed or observed. If the Borrowers fail to renew the Management Agreement, Lender has the right, but not the obligation, to renew the Management Agreement within ten (a10) Business Days’ of receipt of notice from Manager that the Management Agreement and all amounts due from Tenant to the Manager will terminate unless otherwise renewed.
(B) The Borrowers shall not surrender, terminate, cancel, or modify other than the System feenon-material changes, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, or enter into any other Management Agreement with any new Manager, other than an Acceptable Manager (under a management agreement substantially similar in all material respects to the reasonable opinion initial Management Agreement), or consent to the assignment by Manager of Landlord and its counsel, does not cause the Rent to be so characterized interest under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except other than to an Acceptable Manager, in each case without delivery of Rating Agency Confirmations from each of the Rating Agencies and written consent of Lender. In any case, the Borrowers shall deliver to Lender copies of all modifications, amendments and supplements to the Management Agreement promptly upon execution thereof. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall become Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Borrowers shall, as a condition of Lender’s consent, or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the termination thereof form delivered in connection with the closing of the Loan.
(C) Lender shall have the right to terminate the Management Agreement and require that Manager be replaced with a Person chosen by the Borrowers (or, if an Event of Default has occurred and is then continuing, Lender) and reasonably acceptable to Lender, upon the earliest to occur of any one or more of the following termination events: (i) an Event of this Default has occurred and is then continuing, (ii) thirty (30) days after notice from Lender to the Borrowers if Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Management Agreement, (iii) thirty (30) days after notice from Lender to the Borrowers following the latest Maturity Date of any Component then outstanding, (iv) if the DSCR is less than 1.1:1 as of the end of any calendar quarter and Lender reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of Manager rather than factors affecting the Borrowers’ industry generally or (v) a default by Manager in the performance of its obligations under the Management Agreement, which default could reasonably be expected to have a Material Adverse Effect, and such default remains unremedied for thirty (30) days following written notice to Manager. The appointment of any Person chosen by the Borrowers (or Lender) to be successor Manager will require Rating Agency Confirmation. A replacement Manager who satisfies the foregoing shall be an “Acceptable Manager”.
Appears in 1 contract
Sources: Loan and Security Agreement (American Tower Corp /Ma/)
Management Agreement. Except as otherwise provided below(a) The Borrower shall, Tenant or shall not enter intocause the applicable Loan Party to, amend(i) perform and observe all of the material terms, surrender or modify any covenants and conditions of the Management Agreement on the part of such Loan Party to be performed and observed, (ii) promptly notify the Manager of any notice to the Borrower of any material default under the Management Agreement of which it has Knowledge, and (iii) other than in connection with a Person that is not an Affiliated Person as Manager Termination Event prior to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and any automatic termination of the Manager in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement, use commercially reasonable efforts to renew the Management Agreement prior to each expiration date thereunder in accordance with its terms. If any Loan Party shall notdefault in the performance or observance of any material term, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will have on the part of a Loan Party to be performed or observed, then, without limiting the Lenders’ other rights or remedies under this Agreement or the other Transaction Documents, and without waiving or releasing such an effectLoan Party from any of its obligations hereunder or under the Management Agreement, then Tenant will modify the terms Borrower hereby grants the Administrative Agent on its behalf the right, upon prior written notice to such Loan Party, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement so that on the part of such Loan Party to be performed or observed.
(b) The Borrower shall not surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without written consent of the reasonable opinion Requisite Lenders. If at any time the Requisite Lenders consent to the appointment of Landlord and its counsela new Manager, does not cause then the Rent to be so characterized under Borrower shall, as a condition of the Code. Landlord Lenders’ consent, execute a subordination of management agreement in substantially the form delivered on the Closing Date.
(c) The Requisite Lenders shall have no the right to enforce Tenant's rights under any such require that the Manager be replaced in the manner set forth in Section 19(b) of the Management Agreement following the occurrence and continuation of a Manager Termination Event pursuant to Section 19(b) of the Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Uniti Group Inc.)
Management Agreement. Except as otherwise provided below(a) As of the Execution Date, Tenant shall not enter into, amend, surrender or modify any the Management Agreement shall be in full force and effect and Manager shall have no defenses or claims against Trustor with a Person that is not an Affiliated Person as to Marriott respect thereto. Any new or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority subsequent agreements providing for the day-to-day management and operation of the Leased Property Westin St. ▇▇▇▇▇▇▇ Hotel shall be subject to Manager provided that any such Beneficiary’s approval
(b) The Management Agreement shall provide be subordinated to the lien of the Deed of Trust pursuant to an Assignment and Subordination of Management Agreement and Consent of Manager dated as of the date of this Deed of Trust, and further shall be assigned to Beneficiary as additional security for the Loan.
(ac) that Notwithstanding any provision to the contrary contained herein or in the other Loan Documents, the Trustor and Operating Lessee may not amend, modify, supplement, alter or waive any right under the Management Agreement without the written consent of Table of Contents Beneficiary, provided however, without any requirement for consent, Trustor and Operating Lessee may agree to any nonmaterial modification, change, supplement, alteration or amendment to the Management Agreement and all amounts waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect the cash management procedures set forth in the Management Agreement or the Loan Documents, decrease the cash flow of the Property, adversely affect the marketability of the Property, change the definitions of “default” or “event of default,” change the definitions of “operating expense” or words of similar meaning to add additional items to or delete items from such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or words of similar meaning so as to reduce the payments due from Tenant the Trustor thereunder, change the definition of “debt service amount” or “owner indebtedness”, change the definition of “net cash flow” or “net operating cash flow”, change the timing of remittances to the Manager other than Trustor or Operating Lessee thereunder, change the System feepriority of distributions of “net cash flow” to Trustor or Operating Lessee thereunder, shall be subordinate to increase or decrease reserve requirements, change the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms term of the Management Agreement shall not, or increase any Management Fees (as defined in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized ) payable under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement.
(d) Trustor or Operating Lessee may not enter into a new Management Agreement unless approved by Beneficiary in its sole and absolute discretion.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. Except as otherwise provided below(a) As of the Execution Date, Tenant shall not enter into, amend, surrender or modify any the Management Agreement shall be in full force and effect and Manager shall have no defenses or claims against Affiliated Guarantor with a Person that is not an Affiliated Person as to Marriott respect thereto. Any new or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority subsequent agreements providing for the day-to-day management and operation of the Leased Property Westin St. ▇▇▇▇▇▇▇ Hotel shall be subject to Manager provided that any such Beneficiary’s approval
(b) The Management Agreement shall provide be subordinated to the lien of the Deed of Trust pursuant to an Assignment and Subordination of Management Agreement and Consent of Manager dated as of the date of this Deed of Trust, and further shall be assigned to Beneficiary as additional security for the Guaranteed Obligations.
(ac) that Notwithstanding any provision to the contrary contained herein or in the other Security Documents, the Affiliated Guarantor and Operating Lessee may not amend, modify, supplement, alter or waive any right under the Management Agreement without the written consent of Beneficiary, provided however, without any requirement for consent, Affiliated Guarantor and Operating Lessee may agree to any nonmaterial modification, change, supplement, alteration or amendment to the Management Agreement and all amounts waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect the cash management procedures set forth in the Management Agreement or the St. ▇▇▇▇▇▇▇ Loan Documents, decrease the cash flow of the Property, adversely affect the marketability of the Property, change the definitions of “default” or “event of default,” change the definitions of “operating expense” or words of similar meaning to add additional items to or delete items from such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or words of similar meaning so as to reduce the payments due from Tenant the Affiliated Guarantor thereunder, change the definition of “debt service amount” or “owner indebtedness”, change the definition of “net cash flow” or “net operating cash flow”, change the timing of remittances to the Manager other than Affiliated Guarantor or Operating Lessee thereunder, change the System feepriority of distributions of “net cash flow” to Affiliated Guarantor or Operating Lessee thereunder, shall be subordinate to increase or decrease reserve requirements, change the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms term of the Management Agreement shall not, or increase any Management Fees (as defined in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized ) payable under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement.
(d) Affiliated Guarantor or Operating Lessee may not enter into a new Management Agreement unless approved by Beneficiary in its sole and absolute discretion.
Appears in 1 contract
Sources: Subordinate Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. Except (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. Operating Lessee shall (i) diligently perform and observe all of the material terms, covenants and conditions of each Management Agreement, on the part of Operating Lessee to be performed and observed in accordance with the terms thereof and (ii) promptly notify Lender of the giving of any notice by any Manager to Operating Lessee of any default by Operating Lessee in the performance or observance of any of the material terms, covenants or conditions of the applicable Management Agreement on the part of Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Operating Lessee shall not (1) surrender any Management Agreement, (2) except as required by the terms of the Management Agreement, consent to the assignment by any Manager of its respective interest under the applicable Management Agreement, (3) terminate or cancel any Management Agreement or (4) except as required by the terms of the Management Agreement, modify or amend any Management Agreement, in any material respect, either orally or in writing in each case without the consent of Lender which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that immaterial modifications, amendments, changes or supplements of any Management Agreement may be made without consent of Lender (provided, that, in no instance shall any modification, amendment, change or supplement of the Marriott Management Documents which would reduce the consent rights or other discretionary rights of Borrower and/Operating Lessee thereunder from those set forth in the Marriott Management Documents as of the Closing Date be deemed immaterial); and provided further, that, Operating Lessee may, without Lender’s consent (except with respect to any Lender consent required pursuant to the definitions of Qualified Manager and Replacement Management Agreement set forth herein), replace the Manager so long as the replacement manager is a Qualified Manager pursuant to a Replacement Management Agreement and any termination fees and other sums payable to the Manager being replaced are either (i) paid from Excess Cash Flow which is entitled to be used for such payment in accordance with the terms and conditions of this Agreement or (ii) paid from an equity contribution to the Operating Lessee from sources other than the Collateral. Operating Lessee hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Operating Lessee to surrender any Management Agreement, or, except as otherwise provided belowin this Agreement, Tenant to terminate, cancel, modify or amend any Management Agreement, in any material respect, and any such surrender of any Management Agreement, or termination, cancellation, modification or amendment of any Management Agreement, without the prior consent of Lender (other than as permitted pursuant to this Agreement) shall not enter intobe void and of no force and effect. If Operating Lessee shall default in the performance or observance of any material term, amend, surrender covenant or modify condition of any Management Agreement with a Person that on the part of Operating Lessee to be performed or observed, then, if such default is not an Affiliated Person as remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to Marriott or Crestline without Landlord's prior written consentremedy such default after receipt of notice thereof, which consent may be given or withheld in Landlord's sole but shall give Lender a reasonable discretion. Tenant may from period of time to timecure such default, and in accordance with and subject to then without limiting the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation generality of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination provisions of this Agreement, and providedwithout waiving or releasing Borrower or Operating Lessee from any of its obligations hereunder, furtherLender shall have the right, that Landlord shallbut shall be under no obligation, if it succeeds to Tenant's rights 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 the applicable Management Agreement on the part of Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Operating Lessee. 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 Manager shall deliver to Lender a copy of any notice sent to Operating Lessee of default under any Management 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. Operating Lessee shall not, and, subject to the terms of the Management Agreement, shall not permit any Manager to, sub-contract any or all of its respective management agreement, and each management agreement shall so provide, be bound only by responsibilities under any Management Agreement to a third-party without the last management agreement or amendment thereto to which it consentedprior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed delayed. Following the occurrence and provided further thatduring the continuance of an Event of Default, except in respect of Operating Lessee shall not exercise any rights or make any decisions, grant any approvals or otherwise take any action under the Management Agreement entered into pursuant without the prior consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion. Operating Lessee shall, from time to Section 14.3(c)time, use commercially reasonable efforts to obtain from each Manager and deliver to Lender and each Mezzanine Lender such certificates of estoppel with respect to compliance by Operating Lessee with the terms of the applicable Management Agreement as may be requested by Lender; provided, that, so long as no Event of Default has occurred and is continuing, Operating Lessee shall notnot be required to provide such statement more than one (1) time in any Fiscal Year, in Landlord's provided, further, that such estoppel shall be addressed to both Lender and its counsel's reasonable opinioneach Mezzanine Lender. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, cause the Rent (ii) shall be deemed to fail to qualify as "rents from real property" within the meaning of Section 856(d) constitute a portion of the CodeDebt, it being agreed (iii) shall be secured by Tenant the lien of the Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, Operating Lessee, upon the request of Lender, shall terminate the applicable Management Agreement and replace the applicable Manager with a Qualified Manager, without penalty or fee, if at any time during the Loan: (i) Manager shall become insolvent or a debtor in (I) any involuntary bankruptcy or insolvency proceeding that is not dismissed within ninety (90) days of the filing thereof, or (II) any voluntary bankruptcy or insolvency proceeding; (ii) there exists an Event of Default; or (iii) there exists a monetary or material non-monetary default by Manager beyond all applicable notice and cure periods under the Management Agreement. Additionally, at Lender’s option, Lender shall have the right to terminate the Management Agreement and replace Manager, without penalty or fee, if Landlord there exists an Event of Default which remains uncured and its counsel reasonably conclude that is continuing. At such time as such Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
(c) At all times when Operating Lessee is a party to any Management Agreement with respect to any Individual Property, Borrower shall cause Operating Lessee to comply with the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except this Section 5.1.17 with respect to such Individual Property. In the termination thereof following termination of this Agreement.event that
Appears in 1 contract
Management Agreement. Except as otherwise provided belowThe Borrower will, Tenant or will cause Lessee to, duly perform in all material respects the obligations contemplated to be performed by Lessee under the Management Agreement and will, or cause Lessee to, with due diligence and in a reasonable and prudent manner, enforce Lessee's rights under the Management Agreement and will not, and will not permit Lessee to, waive any of Lessee's rights or Manager's obligations under the Management Agreement without the prior written consent of Lender which may be withheld in Lender's sole discretion."
(v) By deleting the last sentence of Section 7.13 of the Loan Agreement, appearing on page 50 thereof, and inserting in lieu thereof the following new last sentence: "Additionally, Borrower shall not, and Borrower shall not enter intopermit Lessee to, amendincrease or decrease, surrender or modify agree to any increase or decrease in, the amount of the Reserve (as defined in the Management Agreement) or any other reserves maintained pursuant to the Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's the prior written consentconsent of the Lender."
(w) By deleting from Section 8.2 of the Loan Agreement, appearing on page 53 thereof, the words "▇▇▇▇▇▇▇▇▇▇ County, Maryland" and inserting in lieu thereof the following: "Richmond, Virginia".
(x) By deleting Section 8.7(a) of the Loan Agreement, appearing on page 55 thereof, and inserting in lieu thereof the following new Section 8.7(a):
(a) Borrower shall not, and Borrower shall not permit Lessee to, terminate or enter into or consent to any amendment, modification, waiver or supplement of any provision of the Management Agreement without the prior written consent of the Lender, which consent may be given or withheld in LandlordLender's sole but reasonable discretion. Tenant may from time Borrower shall cause Lessee to time, (i) with due diligence and in accordance with a reasonable and subject to the Owner Agreementprudent manner, without Landlord's consentfulfill and perform each and every term, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott covenant and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms provision of the Management Agreement shall notto be fulfilled or performed by Lessee thereunder, (ii) give prompt written notice to Lender of any written notice received by Lessee under the Management Agreement, together with a complete copy of any such notice, (iii) with due diligence and in Landlord's a reasonable and its counsel's reasonable opinionprudent manner, cause enforce, short of termination thereof, the Rent to fail to qualify as "rents from real property" within the meaning performance and observance of Section 856(d) of the Codeeach and every term, it being agreed by Tenant that if Landlord covenant and its counsel reasonably conclude that the terms provision of the Management Agreement will have such an effectto be performed or observed by Manager, then Tenant will modify the terms of and (iv) not assign the Management Agreement so that or its rights and obligations thereunder, except pursuant to the Management Loan Documents."
(y) By inserting the phrase "nor Lessee" after the word "Partner" appearing in the first line of Section 8.12 of the Loan Agreement, appearing on page 57 thereof.
(z) By inserting the phrase "or Lessee" after the word "Partner" appearing in the reasonable opinion first line of Landlord and its counsel, does not cause Section 9.1(g) of the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Loan Agreement, except with respect to appearing on page 60 thereof.
(aa) By deleting Section 9.1(o) of the termination Loan Agreement, appearing on page 62 thereof, and inserting in lieu thereof the following termination of this Agreement.new Section 9.1(o):
Appears in 1 contract
Sources: Loan Modification Agreement (Apple Hospitality Two Inc)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's (a) Without the prior written consentconsent of Administrative Agent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, neither Borrower nor Operating Lessee shall enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority into any agreement providing for the day-to-day management, leasing or operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that other than the Management Agreement and all amounts due from Tenant to or the Manager other than Operating Lease effective on the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and Effective Date).
(b) Any agreement providing for the termination thereof upon management or operation of the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each Property entered into after the date hereof shall be with a Replacement Manager. In the event Administrative Agent disapproves a management agreement with a Replacement Manager, Borrower shall so providehave the right to prepay the Loan in full without penalty, be bound only by the last management agreement or amendment thereto but subject to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into Fixed Rate Price Adjustment due pursuant to Section 14.3(c2.2(h).
(c) Each of Borrower and Operating Lessee shall not, without Administrative Agent’s prior consent (except as elsewhere herein-expressly provided): (i) surrender, cancel or terminate the Management Agreement (unless the Manager is being replaced with a Replacement Manager pursuant to a new Management Agreement that has been approved by Administrative Agent), or permit or suffer any significant delegation or contracting of the terms Manager’s duties unless the Manager has the right to do so under the Management Agreement without the consent of Borrower and/or the Operating Lessee or unless such delegation or contracting would not constitute a Material Contract if entered into by Borrower and/or the Operating Lessee itself, or (ii) modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Management Agreement in any material respect; provided however Borrower or Operating Lessee shall be permitted to make any non-material modification, change, supplement, alteration, amendment or waiver of the Management Agreement provided that such modification, amendment or waiver shall notnot affect the cash management procedures set forth in the Management Agreement or the Loan Documents, in Landlord's and its counsel's reasonable opinion, cause decrease the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) cash flow of the CodeProperty, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that adversely affect the terms marketability of the Property, change the definitions of “default” or “event of default,” change the definitions of “operating expense” or words of similar meaning, change the definitions of “owner’s distribution” or “owner’s equity” or “debt service amount” or words of similar meaning so as to reduce the payments due Borrower or Operating Lessee thereunder, change the timing of remittances to Borrower or Operating Lessee thereunder, increase or decrease reserve requirements, change the term of the Management Agreement will have such an effector increase any management fees payable under the Management Agreement.
(d) Borrower and Operating Lessee shall cause the Property to be operated by Manager in accordance with the Management Agreement, then Tenant will modify and Borrower and Operating Lessee shall:
(i) promptly perform and/or observe (or cause to be performed and/or observed) all of the terms covenants and agreements required to be performed and observed by it under the Management Agreement (including, without limitation, the requirements of any PIP) and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Administrative Agent of any material default or notice of non-compliance received or delivered in connection with the Management Agreement;
(iii) promptly deliver to Administrative Agent a copy of each financial statement, business plan, capital expenditures plan and property improvement plan delivered or received by it under the Management Agreement in accordance with Section 9.3(b); and
(iv) indemnify and hold Administrative Agent and Lenders harmless from and against all claims or liabilities in any way arising in connection with payment of any “Termination Amounts,” “Liquidated Damages,” “Termination Fees” or any other costs or fees payable under Section XXIV of the Management Agreement to the extent (A) Administrative Agent or any Lender nonetheless becomes liable to pay any such amounts as a consequence of a Default and subsequent “Sale of the Hotel” notwithstanding best efforts to sell the “Hotel” in a manner, and to a person, so that the “Operator’s Termination Amount” or other amounts are not due and payable, or (B) such amounts become due and payable as a result of affirmative actions of Borrower prior to acceleration of the Loan (all terms in quotations in this clause shall have the meanings given thereto in the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement).
Appears in 1 contract
Management Agreement. Except (a) At all times, except as otherwise provided belowin Section 6.12(b) hereof, Tenant the Separate Property Owner, or an Affiliate thereof, shall not enter intomanage the Separate Property, amendand at all times from and after Final Completion, surrender except as provided in Section 6.12(b) hereof, the Property shall be managed by Borrower or modify an Affiliate of the Borrower.
(b) In the event Borrower or the Separate Property Owner desires to engage a Manager as the manager of the Property or the Separate Property, as applicable, Borrower or the Separate Property Owner, as applicable, may engage such Manager, provided that (i) Lender has approved the Manager selected by Borrower or the Separate Property Owner, as applicable, (ii) the terms of the management agreement are reasonably satisfactory to Lender, and (iii) the proposed Manager agrees to subordinate the Management Agreement, and executes an Assignment of Management Agreement.
(c) Borrower and the Separate Property Owner, as applicable, shall diligently perform, observe and enforce all of the terms, covenants and conditions of any Management Agreement with on the part of Borrower or the Separate Property Owner to be performed, observed and enforced, to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower or the Separate Property Owner under such Management Agreement, and shall immediately send to Lender copies of any notice to Borrower or the Separate Property Owner of any default or potential default by Borrower or the Separate Property Owner in the performance or observance of any of the terms, covenants or conditions of such Management Agreement on the part of Borrower or the Separate Property Owner to be performed and observed. Neither Borrower nor the Separate Property Owner shall (i) surrender any Management Agreement, (ii) consent to the assignment by a Person that is not an Affiliated Person as to Marriott or Crestline Manager of its interest under any Management Agreement, (iii) without Landlord's the prior written consentconsent of Lender, which terminate or cancel any Management Agreement, or (iv) without the prior written consent of Lender, change, supplement, alter or amend any Management Agreement in any respect, either orally or in writing.
(d) Borrower hereby, and the Separate Property Owner pursuant to the Deeds of Trust, together assign to Lender as further security for payment of the Obligations, all the rights, privileges and prerogatives of Borrower and the Separate Property Owner, individually or collectively, to surrender any Management Agreement, or to terminate, cancel, modify, change, supplement, alter, or amend any Management Agreement in any respect without such prior written consent of Lender and each such surrender of any Management Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment of any Management Agreement without such prior consent of Lender shall be void and of no force and effect.
(e) If Borrower or the Separate Property Owner shall default in the performance or observance of any term, covenant or condition of any Management Agreement on the part of Borrower or the Separate Property Owner to be performed or observed, then, without limiting the generality or the other provisions of this Loan Agreement, and without waiving or releasing Borrower or the Separate Property Owner 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 given or withheld in Landlord's sole but reasonable discretion. Tenant may from time appropriate to time, and in accordance with and subject to cause all of the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, covenants and conditions of such Management Agreements with its Affiliated Persons Agreement on the part of Borrower or Marriott the Separate Property Owner to be performed or observed to be promptly performed or observed on behalf of Borrower or the Separate Property Owner to end that the rights of Borrower or the Separate Property Owner, as applicable, in, to and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any under such Management Agreement shall provide be kept unimpaired and free from default. In such event, Lender and any person designated by Lender shall have, and are hereby granted the right to enter upon the Property or the Separate Property, as applicable, at any time and from time to time while such default remains uncured for the purpose of taking any such action. If a Manager shall deliver to Lender a copy of any notice sent to Borrower or the Separate Property Owner of a default under any Management 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.
(af) that Borrower and the Separate Property Owner shall, from time to time obtain from the Manager under any Management Agreement and all amounts due to which any of them is a party such certificates of estoppel with respect to compliance by Borrower or the Separate Property Owner, as applicable, with the terms of such Management Agreement as may be reasonably requested by Lender.
(g) Any sums expended by Lender pursuant to this Section 6.12 shall bear interest at the Default Rate from Tenant the date such cost is incurred to the Manager other than the System feedate of payment to Lender, shall be subordinate to deemed and constituted a portion of the Lease and all amounts due from Tenant to Landlord under the LeaseObligations, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only secured by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms Lien of the Management Agreement Deeds of Trust and the other Loan Documents and shall not, in Landlord's be immediately due and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed payable upon demand by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLender therefor.
Appears in 1 contract
Management Agreement. Except as otherwise provided belowBorrower shall maintain, Tenant shall not enter intoor cause to be maintained, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement in full force and effect and timely perform all amounts due from Tenant to of Borrower's obligations thereunder and enforce performance of all obligations of the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Leasethereunder, and (b) for except as otherwise permitted by the Loan Documents, not permit the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consentedof the Management Agreement unless the prior written consent of Lender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed delayed. Borrower shall cause the Manager to enter into an assignment and provided further that, except subordination of the management agreement in respect form satisfactory to Lender (the "SUBORDINATION OF MANAGEMENT Agreement"). The Subordination of any Management Agreement entered into shall assign and subordinate the Manager's interests in the Property and all fees and other rights of the Manager pursuant to Section 14.3(c), the terms of the Management Agreement shall notto the rights of Lender. Upon an Event of Default, in LandlordBorrower shall, at Lender's and its counsel's reasonable opinionrequest made at any time while such Event of Default continues, terminate, or cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Codetermination of, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement. Borrower shall not enter into any agreement relating to the management of the Property with any party without the express written consent of Lender (which consent shall not be unreasonably withheld to the extent that such manager is an affiliate of Borrower); provided, in the reasonable opinion of Landlord and its counselhowever, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to a new manager such consent may also be conditioned upon Borrower delivering (i) a Rating Comfort Letter with respect to such new manager and management agreement, and (ii) evidence satisfactory to Lender (which shall include, at the termination thereof following termination request of this AgreementLender, a legal non-consolidation opinion acceptable to Lender) that the single purpose nature and bankruptcy remoteness of Borrower, its shareholders, partners or members, as the case may be, after the engagement of the new manager are in accordance with the requirements of the Rating Agencies. If at any time Lender consents to the appointment of a new manager, such new manager and Borrower shall, as a condition of Lender's consent, execute an assignment and subordination of such management agreement in the form then used by Lender.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant (A) The Borrowers shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Properties in accordance with the Management Agreement. The Borrowers shall (i) perform and subject to observe all of the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective material terms, Management Agreements with its Affiliated Persons or Marriott covenants and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement shall noton the part of each Borrower to be performed and observed, in Landlord's and its counsel's reasonable opinion, cause the Rent (ii) promptly notify Lender of any notice to fail to qualify as "rents from real property" within the meaning of Section 856(d) any of the CodeBorrowers of any material default under the Management Agreement of which it is aware, it being agreed by Tenant that if Landlord and (iii) prior to termination of the Manager in accordance with Section 5.11(C) hereof, Borrower shall renew the Management Agreement prior to each expiration date thereunder in accordance with its counsel reasonably conclude that terms. If any of the terms Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement will on the part of the Borrowers to be performed or observed, then, without limiting Lender's other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing the Borrowers from any of their obligations hereunder or under the Management Agreement, Lender shall have the right, upon prior written notice to the Borrowers, but shall be under no obligation, to pay any sums and to perform any act as may be reasonably appropriate to cause such an effect, then Tenant will modify the terms material conditions of the Management Agreement so that on the part of the Borrowers to be performed or observed.
(B) The Borrowers shall not surrender, terminate, cancel, or modify (other than nonmaterial changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of Rating Confirmations from each of the reasonable opinion Rating Agencies and written consent of Landlord the Lender. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall become the Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Borrowers shall, as a condition of Lender's consent, or with respect to an Acceptable Manager, prior to commencement of its counselduties as Manager, does not cause execute a subordination of management agreement in substantially the Rent form delivered in connection with the closing of the Loan.
(C) Lender shall have the right to require that the Manager be so characterized replaced with a Person chosen by the Borrowers (or, if an Event of Default has occurred and is then continuing, Lender) and reasonably acceptable to Lender, upon the earliest to occur of any one or more of the following events: (i) an Event of Default has occurred and is then continuing, (ii) thirty (30) days after notice from Lender to the Borrowers if Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect (iii) thirty (30) days after notice from Lender to the termination thereof Borrowers (a) following termination the Anticipated Repayment Date, or (b) if the DSCR is less than 1.1:1 and Lender reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of this Agreementthe Manager rather than factors affecting the Borrowers' industry generally or (iv) Manager defaults under the Management Agreement and such default is reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant (i) Borrower shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Mortgage Borrower to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but use commercially reasonable discretion. Tenant may from time efforts to time, cause Manager to manage and lease the Property in accordance with the Management Agreement. Borrower shall cause Mortgage Borrower to (A) diligently perform and subject observe, in each case in all material respects, all of the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower to be performed and observed, (B) promptly notify Administrative Agent of any written notice to Borrower or Mortgage Borrower of any material default by Borrower or Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower to be performed and observed beyond any applicable grace, notice and cure periods, (C) promptly following receipt of Administrative Agent’s written request, promptly deliver to Administrative Agent a copy of each financial statement, business plan, capital expenditures plan, report and estimate received by it pursuant to the Owner terms of the Management Agreement, and (D) promptly enforce the performance and observance in all material respects of all of the covenants required to be performed and observed by Manager under the Management Agreement. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Management Agreement on the part of Mortgage Borrower to be performed or observed beyond any applicable grace, notice or cure periods, then, without Landlord's limiting Administrative Agent’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder or Mortgage Borrower’s Obligations or under the Management Agreement, as applicable, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower to be performed or observed. Borrower hereby agrees to pay to Administrative Agent promptly following written demand, all such sums so paid and expended by Administrative Agent in connection therewith, together with interest thereon at the Default Rate from the day on which Borrower receives such demand until paid. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the legal operation and effect of the Pledge Agreement.
(ii) Borrower may, without Administrative Agent’s consent, enter intopermit Mortgage Borrower to replace the Manager so long as the replacement manager is a Qualified Manager pursuant to a Replacement Management Agreement.
(iii) Borrower shall not permit Mortgage Borrower to replace Manager, and/or surrender, terminate, in accordance with their respective termscancel, modify, renew or extend the Management Agreements with its Affiliated Persons Agreement, or Marriott and also with enter into any other Persons pursuant agreement relating to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day management or operation of the Leased Property with Manager or any other Person, or consent to the assignment by the Manager provided that any such Management Agreement shall provide (a) that of its interest under the Management Agreement Agreement, or waive or release any of its rights and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord remedies under the Lease, and (b) for the termination thereof upon the termination of this Management Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and in each management agreement shall so provide, be bound only by case without the last management agreement or amendment thereto to which it consentedexpress consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed and delayed; provided further that, except in respect that Administrative Agent’s consent shall not be required for the termination of any a Management Agreement entered into pursuant if Mortgage Borrower has previously executed another Qualified Replacement Management Agreement for the Property. In the event that the Management Agreement expires or is terminated (without limiting any obligation of Borrower to Section 14.3(c), the terms obtain Administrative Agent’s consent to any termination or modification of the Management Agreement to the extent required in accordance with the terms and provisions of this Agreement), Borrower shall notcause Mortgage Borrower to promptly enter into a Replacement Management Agreement with Manager or another Qualified Manager, in Landlord's as applicable.
(iv) Administrative Agent shall have the right to require Borrower to cause Mortgage Borrower to replace the Manager with a Person which is not an Affiliate of Borrower and its counsel's reasonable opinionapproved by Administrative Agent (such approval, cause other than during the Rent continuance of an Event of Default, not to fail to qualify as "rents from real property" within be unreasonably withheld, conditioned or delayed) upon the meaning occurrence of Section 856(d) any one or more of the Codefollowing events: (i) at any time following the occurrence and during the continuance of an Event of Default, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms (ii) upon a change in Control of the Management Agreement will have such Manager (if the Manager is an effectAffiliate of Sponsor), then Tenant will modify (iii) if Manager becomes a debtor in a bankruptcy proceeding or (iv) upon the terms occurrence of the Management Agreement so that a material event of default under the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Management Agreement. Except as otherwise provided below, Tenant On and after the first Credit Date: the Manager and the Loan Parties shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that have entered into the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Leaseand:
(i) The Borrower shall, and shall cause the Asset Entities to, (bA) for perform and observe all of the termination thereof upon the termination of this Agreementmaterial terms, covenants and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement shall not, in Landlord's on the part of each Asset Entity to be performed and its counsel's reasonable opinion, cause observed and (B) promptly notify the Rent Administrative Agent of any notice to fail to qualify as "rents from real property" within the meaning of Section 856(d) any of the CodeAsset Entities of any material default under the Management Agreement of which it has Knowledge. If any Asset Entity shall default in the performance or observance of any material term, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will have on the part of such an effectAsset Entity to be performed or observed, then Tenant will modify then, without limiting the terms Administrative Agent’s other rights or remedies under this Agreement or the other Transaction Documents, and without waiving or releasing such Asset Entity from any of its obligations hereunder or under the Management Agreement, the Borrower grants the Administrative Agent on its behalf the right, upon prior written notice to such Asset Entity, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement so on the part of such Asset Entity to be performed or observed; provided that neither the Administrative Agent nor the Manager will be under any obligation to pay such sums or perform such acts.
(ii) The Borrower shall not permit the Asset Entities to surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, to amend, modify or waive the Management Agreement, or enter into any other management agreement with any new manager, or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without the reasonable opinion consent of Landlord the Requisite Lenders.
(iii) Each of the Administrative Agent and the Collateral Agent is permitted to utilize and in good faith rely upon the advice of the Manager (or to utilize other agents or attorneys), at the cost of the Manager or the Borrower, in performing its counsel, does not cause the Rent to be so characterized obligations under the Code. Landlord Transaction Documents, including Fiber Network management, operation, and maintenance; Fiber Network Asset dispositions and releases; any restoration or remedial work; and confirmation of compliance by the Borrower with the provisions hereunder and under the other Transaction Documents and neither the Collateral Agent nor the Administrative Agent shall have no right to enforce Tenant's rights under any such Management Agreement, except liability with respect to the termination thereof following termination of this Agreementthereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Frontier Communications Parent, Inc.)
Management Agreement. Except Lessor shall have the right in its sole and absolute discretion to approve or disapprove in advance any manager or proposed manager (a "Manager") of the Facility which is not an Affiliate of Lessee which is Controlled by IHC or its senior management, as otherwise provided below, Tenant shall well as any agreement relating to the management or operation of the Facility (a "Management Agreement") by a Manager which is not enter into, amend, surrender or modify an Affiliate of Lessee and Lessee will provide Lessor with an executed copy of any Management Agreement so approved by Lessor. Any Management Agreement (whether with a Person that Manager which is an Affiliate or is not an Affiliated Person as Affiliate of Lessee) must provide that (i) upon termination of this Lease or termination of Lessor's or Lessee's right to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation possession of the Leased Property to Manager provided that for any such Management Agreement shall provide (a) that reason, the Management Agreement and all amounts may be terminated by Lessor without liability for any payment due from Tenant or to become due to the Manager other than the System fee, thereunder; (ii) any management fees shall be subordinate subordinated to payments of Rent to Lessor hereunder; and (iii) in the event Lessee is in default, the Manager shall, at the election of Lessor and provided the Manager continues to be paid and Lessor (or any party acting by or through Lessor) agrees to perform Lessee's other obligations to Manager under the Management Agreement which accrue subsequent to the Lease and all amounts due from Tenant date the Lessor makes such election, continue to Landlord perform under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement for a period not to exceed ninety (90) days, provided that such election by Lessor shall not, not constitute a waiver by Lessor of any rights or remedies Lessor may have as a result of Lessee's default. No fees or other amounts payable by Lessee to any Manager shall excuse Lessee from its obligations to pay Rent and other amounts payable by Lessee to Lessor hereunder. No Management Agreement may be amended or modified in Landlord's and its counsel's reasonable opinion, cause any manner which materially affects the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) subordination of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that management fees without the terms prior written consent of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLessor.
Appears in 1 contract
Sources: Lease Agreement (Equity Inns Inc)
Management Agreement. Except as otherwise provided below, Tenant Borrower shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that cause the Property to be managed pursuant to the Management Agreement; (b) subject to Borrower’s business judgment to the contrary, promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all amounts due from Tenant things necessary to preserve and to keep unimpaired its rights thereunder; (c) subject to Borrower’s business judgment to the Manager other than the System feecontrary, shall be subordinate to the Lease and all amounts due from Tenant to Landlord promptly notify Administrative Agent of any default under the LeaseManagement Agreement of which it is aware; (d) promptly deliver to Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, and property improvement plan and any other notice, report and estimate received by Borrower under the Management Agreement; and (be) for promptly enforce the termination thereof upon performance and observance of all of the termination of this covenants required to be performed and observed by Manager under the Management Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented. Without Administrative Agent’s prior express written consent, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed, except in respect of any Borrower shall not (i) surrender, terminate, cancel, extend or renew the Management Agreement entered or otherwise replace the Manager or enter into any other management agreement (except pursuant to Section 14.3(c5.12.2), ; (ii) reduce or consent to the terms reduction of the term of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause Agreement; (iii) increase or consent to the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) increase of the Codeamount of any charges under the Management Agreement; (iv) otherwise modify, it being agreed by Tenant that if Landlord change, supplement, alter or amend in any material respect, or waive or release any of its rights and its counsel reasonably conclude that remedies under, the terms Management Agreement; or (v) suffer or permit the occurrence and continuance of a default beyond any applicable cure period under the Management Agreement will have (or any successor management agreement) if such an effect, then Tenant will modify default permits the terms of Manager to terminate the Management Agreement so that (or such successor management agreement). If (x) Administrative Agent fails to respond to a written request from Borrower to Administrative Agent for Administrative Agent’s consent to any action contained in clauses (i) through (v) hereunder within ten (10) Business Days following Borrower’s delivery of the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except materials required with respect hereto, (y) Borrower delivers to Administrative Agent a second submission with respect thereto, but with such second submission stating in bold uppercase letters at the termination thereof following termination top of this Agreementsuch request “SECOND AND FINAL NOTICE -- TIME SENSITIVE APPROVAL OR DISAPPROVAL REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT, OR DEEMED APPROVAL WILL OCCUR” and (z) Administrative Agent fails to expressly approve or disapprove the action(s) identified in such second submission within such additional five (5) Business Day period, then such action(s) shall be deemed to have been approved by Administrative Agent.
Appears in 1 contract
Management Agreement. Except as otherwise provided belowIn the event that any Property is subject to a Management Agreement, Tenant the applicable Borrower shall not enter into, amend, surrender or modify any (a) cause such Property to be managed pursuant to such Management Agreement; (b) promptly perform and observe all of the covenants required to be performed and observed by it under such Management Agreement with and do all things necessary to preserve and to keep unimpaired its rights thereunder; (c) promptly notify Lender of any default under such Management Agreement of which it is aware; (d) promptly deliver to Lender a Person that is not an Affiliated Person copy of each financial statement, business plan, capital expenditure plan, and property improvement plan and any other notice, report and estimate received by such Borrower under its Management Agreement; and (e) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under such Management Agreement. If any Borrower shall default in the performance or observance of any material term, covenant or condition of a Management Agreement on the part of such Borrower to be performed or observed, then, without limiting Lender's other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing such Borrower from any of its obligations hereunder or under such Management Agreement, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to Marriott cause all the material terms, covenants and conditions of such Management Agreement on the part of such Borrower to be performed or Crestline without Landlordobserved. Without Lender's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed, except in respect of any no Borrower shall (i) surrender, terminate, cancel, extend or renew its Management Agreement entered or otherwise replace the Manager or enter into any other management agreement (except pursuant to Section 14.3(c5.12.2 hereof), ; (ii) reduce or consent to the terms reduction of the term of its Management Agreement; (iii) increase or consent to the increase of the amount of any charges under its Management Agreement; (iv) otherwise modify, change, supplement, alter or amend in any material respect, or waive or release any of its rights and remedies under, its Management Agreement; or (v) suffer or permit the occurrence and continuance of a default beyond any applicable cure period under its Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause (or any successor management agreement) if such default permits the Rent Manager to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the terminate such Management Agreement will have (or such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementsuccessor management agreement).
Appears in 1 contract
Sources: Loan Agreement (Parking REIT, Inc.)
Management Agreement. Except as otherwise provided belowWith respect to all Property other than the T-Mobile Property, Tenant Borrower shall manage such Property in its own name and for its own account, and shall not enter intointo any agreement relating to the management or operation of such Property with any affiliate of Borrower or any third party, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's the express prior written consent of Lender. If at any time Lender consents to the appointment of a manager for the Property, as a condition of Lender’s consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time the management fees payable to time, such manager and in accordance with the terms and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation provisions of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease Loan Documents and all amounts due from Tenant to Landlord under Lender’s rights in the LeaseProperty, and (b) for the termination thereof upon the termination Borrower and such manager shall execute a Subordination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into in the form then being used by Lender. With respect to the existing T-Mobile Management Agreement and to any future Management Agreement for any Property as may be approved by Lender as provided in this Section 5.11.1, Borrower shall (i) cause the Property to be managed pursuant to Section 14.3(c), the terms Management Agreement; (ii) promptly perform and observe in all material respects all of the covenants required to be performed and observed by it under the Management Agreement shall notand do all things necessary to preserve and to keep unimpaired in all material respects its rights thereunder; (iii) within five (5) Business Days of obtaining knowledge thereof, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning notify Lender of Section 856(d) of the Code, it being agreed by Tenant any default that if Landlord and its counsel reasonably conclude that the terms of extends beyond any applicable notice and/or cure period under the Management Agreement will have such an effectof which it is aware; (iv) within five (5) Business Days after receipt deliver to Lender a copy of each financial statement, then Tenant will modify the terms of the Management Agreement so that business plan, capital expenditure plan, and property improvement plan and any other notice, report and estimate received by Borrower under the Management Agreement, ; and (v) promptly enforce in a commercially reasonable manner the reasonable opinion performance and observance of Landlord and its counsel, does not cause all of the Rent covenants required to be so characterized performed and observed by Manager under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement. Further, except with respect to the termination thereof following termination existing T-Mobile Management Agreement and to any future Management Agreement for any Property as may be approved by Lender as provided in this Section 5.11.1, without Lender’s prior written consent, Borrower shall not (a) surrender, terminate, cancel, extend or renew the Management Agreement (except for automatic extensions or renewals of this T-Mobile Management Agreement as provided therein) or otherwise replace the Manager or enter into any other management agreement (except pursuant to Section 5.11.2); (b) reduce or consent to the reduction of the term of the Management Agreement; (c) increase or consent to the increase of the amount of any charges under the Management Agreement; (d) otherwise modify, change, supplement, alter or amend in any material respect, or waive or release any of its rights and remedies under, the Management Agreement; or (e) suffer or permit the occurrence and continuance of a default beyond any applicable cure period under the Management Agreement (or any successor management agreement) if such default permits the Manager to terminate the Management Agreement (or such successor management agreement).
Appears in 1 contract
Management Agreement. Except (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. Borrower shall cause Operating Lessee to (i) diligently perform and observe all of the material terms, covenants and conditions of each Management Agreement, on the part of Operating Lessee to be performed and observed in accordance with the terms thereof and (ii) promptly notify Lender of the giving of any notice by any Manager to Operating Lessee of any default by Operating Lessee in the performance or observance of any of the material terms, covenants or conditions of the applicable Management Agreement on the part of Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not permit or cause Operating Lessee to (1) surrender any Management Agreement, (2) except as required by the terms of the Management Agreement, consent to the assignment by any Manager of its respective interest under the applicable Management Agreement, (3) terminate or cancel any Management Agreement, or (4) except as required by the terms of the Management Agreement, modify or amend any Management Agreement, in any material respect, either orally or in writing in each case without the consent of Lender which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that immaterial modifications, amendments, changes or supplements of any Management Agreement may be made without consent of Lender (provided, that, in no instance shall any modification, amendment, change or supplement of the Marriott Management Documents which would reduce the consent rights or other discretionary rights of Mortgage Borrower and/or Operating Lessee thereunder from those set forth in the Marriott Management Documents as of the Closing Date be deemed immaterial); and provided further, that, Borrower may permit Operating Lessee to, without Lender’s consent (except with respect to any Lender consent required pursuant to the definitions of Qualified Manager and Replacement Management Agreement set forth herein), replace the Manager so long as the replacement manager is a Qualified Manager pursuant to a Replacement Management Agreement and any termination fees and other sums payable to the Manager being replaced are either (i) paid from Excess Cash Flow which is entitled to be used for such payment in accordance with the terms and conditions of this Agreement or (ii) 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. Subject to the rights of Mortgage Lender and Mezzanine A Lender, Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Operating Lessee to surrender any Management Agreement, or, except as otherwise provided belowin this Agreement, Tenant to terminate, cancel, modify or amend any Management Agreement, in any material respect, and any such surrender of any Management Agreement, or termination, cancellation, modification or amendment of any Management Agreement, without the prior consent of Lender (other than as permitted pursuant to this Agreement) shall not enter intobe void and of no force and effect. If Operating Lessee shall default in the performance or observance of any material term, amend, surrender covenant or modify condition of any Management Agreement with a Person that is not an Affiliated Person as on the part of Operating Lessee to Marriott be performed or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with observed and subject to the Owner Agreementrights of Mortgage Lender and Mezzanine A Lender, then, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to cause Operating Lessee to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for limiting the day-to-day operation generality of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination provisions of this Agreement, and providedwithout waiving or releasing Borrower or Operating Lessee from any of its obligations hereunder, furtherLender shall have the right, that Landlord shallbut shall be under no obligation, if it succeeds to Tenant's 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 the applicable Management Agreement on the part of Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Operating Lessee. Subject to the rights of Mortgage Lender and the Mezzanine A Lender, 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 Manager shall deliver to Lender a copy of any notice sent to Operating Lessee of default under any management agreementManagement 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. Borrower shall not permit Operating Lessee to, and each shall cause Operating Lessee to not permit any Manager to, subject to the terms of the Management Agreement, sub-contract any or all of its respective management agreement shall so provide, be bound only by responsibilities under any Management Agreement to a third-party without the last management agreement or amendment thereto to which it consentedprior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed delayed. Following the occurrence and provided further thatduring the continuance of an Event of Default, except in respect of Borrower shall cause Operating Lessee to not exercise any rights or make any decisions, grant any approvals or otherwise take any action under the Management Agreement entered into pursuant without the prior consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion. Borrower shall cause Operating Lessee to, from time to Section 14.3(c)time, use commercially reasonable efforts to obtain from each Manager and deliver to Lender, Mortgage Lender and Mezzanine A Lender such certificates of estoppel with respect to compliance by Operating Lessee with the terms of the applicable Management Agreement as may be requested by Lender; provided, that, so long as no Event of Default has occurred and is continuing, Borrower shall notnot be required to cause Operating Lessee to provide such statement more than one (1) time in any Fiscal Year, in Landlord's provided, further, that such estoppel shall be addressed to each of Lender, Mortgage Lender and its counsel's reasonable opinionMezzanine A Lender. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, cause the Rent (ii) shall be deemed to fail to qualify as "rents from real property" within the meaning of Section 856(d) constitute a portion of the CodeDebt, it being agreed (iii) shall be secured by Tenant that if Landlord and its counsel reasonably conclude that the terms lien of the Management Pledge Agreement will have such an effect, then Tenant will modify and the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord other Loan Documents and its counsel, does not cause the Rent to (iv) shall be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementimmediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed (I) with respect to the Properties managed by Six Continents Hotels, the sum of (x) five percent (5%) of total room revenue and (y) two percent (2%) of total revenue; provided, however, Six Continents Hotels shall not charge any additional franchise fees in connection with such Properties and (II) with respect to the Properties managed by any Person other than Six Continents Hotels, four percent (4%) of the gross income derived from the Property (excluding any incentive management fees which are subordinate to the Loan). Borrower shall cause Mortgage Borrower (or Pledgor shall cause Operating Lessee to)
(i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement, on the part of Operating Lessee to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Operating Lessee under the Management Agreement and all amounts due from Tenant (ii) promptly notify Lender of the giving of any notice by Manager to Operating Lessee of any default by Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall cause Mortgage Borrower and/or Pledgor shall cause Operating Lessee to not surrender the Management Agreement, consent to the assignment by the Manager other than of its interest under the System feeManagement Agreement, shall be subordinate or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing. Subject to the Lease and all amounts due from Tenant rights of Mortgage Lender, if Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Operating Lessee to Landlord under be performed or observed, then, without limiting the Lease, and (b) for generality of the termination thereof upon the termination other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Borrower shall cause Mortgage Borrower to permit Lender 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 the Management Agreement on the part of Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, furtherhowever, that Landlord shallLender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender by written notice to Borrower to have 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 the Manager shall deliver to Lender a copy of any notice sent to Borrower or Mortgage Borrower and/or Pledgor or Operating Lessee of default under the Management Agreement, if it succeeds such notice shall constitute full protection to Tenant's rights under Lender for any management agreementaction taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower and/or Pledgor shall cause Operating Lessee to not, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheldpermit the Manager to, conditioned sub-contract all or delayed and provided further that, except in respect any material portion of any its management responsibilities under the Management Agreement entered into pursuant to Section 14.3(c), a third-party without the prior written consent of Lender. Pledgor shall cause Operating Lessee to request of Manager and deliver to Lender upon receipt such certificates of estoppel with respect to compliance by Operating Lessee with the terms of the Management Agreement as may be requested by Lender. Borrower shall notcause Mortgage Borrower and/or Pledgor shall cause Operating Lessee to exercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have to the extent required to continue it in full force and effect until after the Maturity Date. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such an effectcost is incurred to the date of payment to Lender, then Tenant will modify (ii) shall be deemed to constitute a portion of the terms Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, Pledgor shall cause Operating Lessee, upon the request of Lender and in accordance with the provisions of the applicable Subordination of Management Agreement, to terminate the Management Agreement so that and replace the Manager, without penalty or fee, if at any time during the Loan:
(a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default or (c) there exists an event of default by Manager under the Management Agreement. At such time as the Manager may be removed, in provided no Event of Default has occurred, a Qualified Manager may be selected by Mortgage Borrower and/or Operating Lessee to assume management of the reasonable opinion of Landlord and its counsel, does not cause the Rent applicable Individual Property pursuant to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such a Replacement Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Management Agreement. Except as otherwise provided below, Tenant Each Borrower and each Operating Lessee shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as use commercially reasonable efforts to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time (i) cause Manager to time, and manage the Property owned by it in accordance with and subject a Management Agreement and, for so long as the Sub-Management Agreement shall be in effect, use commercially reasonable efforts to cause Manager to cause Sub-Manager to use commercially reasonable efforts to manage the Owner Agreement, without Landlord's consent, enter into, and/or terminate, Property in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the daySub-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, (ii) diligently perform and observe all of the material terms, covenants and conditions of such Management Agreement on the part of such Borrower or such Operating Lessee to be performed and observed and, for so long as the Sub-Management Agreement shall be in effect, cause Manager to diligently perform and observe all of the material terms, covenants and conditions of the Sub-Management Agreement on the part of Manager to be performed and observed, (iii) promptly notify Lender of any default under such Management Agreement and under such Sub-Management Agreement of which it is aware, (iv) intentionally omitted, and (v) use commercially reasonable efforts to enforce the performance and observance of all of the material covenants required to be performed and observed by Manager under its Management Agreement and cause Manager to use commercially reasonable efforts to enforce the performance and observance of all of the material covenants required to be performed and observed by Sub-Manager under the Sub-Management Agreement. If any Borrower or any Operating Lessee or Manager shall default in the reasonable opinion performance or observance of Landlord and any material term, covenant or condition of its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement or Sub-Management Agreement, except with respect as applicable, on the part of such Borrower or such Operating Lessee or Manager, as applicable, to be performed or observed, then, without limiting Lender’s other rights or remedies under this Agreement or the termination thereof following termination other Loan Documents, and without waiving or releasing such Borrower or such Operating Lessee from any of this its Obligations hereunder or under its Management Agreement or Manager’s obligations under the Sub-Management Agreement, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the material terms, covenants and conditions of such Management Agreement on the part of such Borrower or such Operating Lessee, or of the Sub-Management Agreement on the part of Sub-Manager, to be performed or observed.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Management Agreement. Except (a) The Issuer shall, and shall cause the Asset Entities as otherwise applicable to, (i) perform and observe all of the material terms, covenants and conditions of the Management Agreement on the part of each Asset Entity to be performed and observed, (ii) promptly notify the Indenture Trustee and the Servicer of any notice to any of the Obligors of any material default under the Management Agreement, and (iii) prior to termination of the Manager in accordance with the terms of the Management Agreement, to renew the Management Agreement prior to each expiration date thereunder in accordance with its terms. If any of the Obligors shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of the Obligors to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Base Indenture or the other Transaction Documents, and without waiving or releasing the Obligors from any of their obligations hereunder or under the Management Agreement, the Issuer grants the Servicer on its behalf the right, upon prior written notice to the Obligors, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement on the part of the Obligors to be performed or observed; provided belowthat the Servicer will be under no obligation to pay such sums or perform such acts. For the avoidance of doubt, Tenant in no event shall the Indenture Trustee be required to perform any duty of the Manager under the Management Agreement.
(b) The Issuer shall not enter intoitself, amendand shall not permit the Asset Entities to surrender, surrender terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with a Person any new Manager that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with Approved Operator (other Persons than pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof appointment of a replacement Manager following termination the occurrence and during the continuation of a Manager Termination Event).
(c) [Reserved].
(d) The Indenture Trustee and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or to utilize other agents or attorneys), in performing certain of its obligations under this AgreementBase Indenture and the other Transaction Documents, and neither the Indenture Trustee nor the Servicer shall have any liability with respect thereto. Further, the Servicer is permitted to utilize and in good faith rely upon the advice of the Manager (or to utilize other agents or attorneys), in performing obligations relating to Parking Facility management, administration, and maintenance of the Parking Facilities; Parking Facility dispositions, releases and substitutions; and confirmation of compliance by the Issuer with the provisions hereunder and under the other Transaction Documents, and shall have no liability with respect thereto.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant (A) The Borrowers shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Sites in accordance with the Management Agreement. The Borrowers shall (i) perform and subject observe all of the material terms, covenants and conditions of the Management Agreement on the part of each Borrower to be performed and observed, (ii) promptly notify Lender of any notice to any of the Owner AgreementBorrowers of any material default under the Management Agreement of which they are aware, without Landlord's consent, enter into, and/or terminate, and (iii) prior to termination of the Manager in accordance with their respective termsSection 5.11(C), Borrowers shall renew the Management Agreements Agreement prior to each expiration date thereunder in accordance with its Affiliated Persons terms. If the Borrowers shall default in the performance or Marriott and also with other Persons pursuant to Sections 4.1.1(b)observance of any material term, 14.3(c) and 0 delegating operational authority for the day-to-day operation covenant or condition of the Leased Property to Manager provided that any such Management Agreement on the part of the Borrowers to be performed or observed, then, without limiting Lender’s other rights or remedies under Loan Agreement or the other Loan Documents, and without waiving or releasing the Borrowers from any of their obligations hereunder or under the Management Agreement, Lender shall provide have the right, upon prior written notice to the Borrowers, but shall be under no obligation, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement on the part of the Borrowers to be performed or observed. If the Borrowers fail to renew the Management Agreement, the Lender has the right, but not the obligation, to renew the Management Agreement within ten (a10) Business Days’ of receipt of notice from the Manager that the Management Agreement and all amounts due from Tenant to the Manager will terminate unless otherwise renewed.
(B) The Borrowers shall not surrender, terminate, cancel, or modify other than the System feenon-material changes, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, or enter into any other Management Agreement with any new Manager, other than an Acceptable Manager (under a management agreement substantially similar in all material respects to the reasonable opinion initial Management Agreement), or consent to the assignment by the Manager of Landlord and its counsel, does not cause the Rent to be so characterized interest under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except other than to an Acceptable Manager, in each case without delivery of Rating Agency Confirmations from each of the Rating Agencies and written consent of the Lender. In any case, Borrowers shall deliver to Lender copies of all modifications, amendments and supplements to the Management Agreement promptly upon execution thereof. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall become the Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Borrowers shall, as a condition of Lender’s consent, or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the termination thereof form delivered in connection with the closing of the Loan.
(C) Lender shall have the right to terminate the Management Agreement and require that the Manager be replaced with a Person chosen by the Borrowers (or, if an Event of Default has occurred and is then continuing, Lender) and reasonably acceptable to Lender, upon the earliest to occur of any one or more of the following termination events: (i) an Event of this Default has occurred and is then continuing, (ii) thirty (30) days after notice from Lender to the Borrowers if Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Management Agreement, (iii) thirty (30) days after notice from Lender to the Borrowers following the latest Maturity Date of any Component then outstanding, (iv) if the DSCR is less than 1.1:1 as of the end of any calendar quarter and Lender reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of the Manager rather than factors affecting the Borrowers’ industry generally or (v) a default by the Manager in the performance of its obligations under the Management Agreement, which default could reasonably be expected to have a Material Adverse Effect, and such default remains unremedied for thirty (30) days following written notice to Manager. The appointment of any Person chosen by the Borrowers (or the Lender) to be successor Manager who is not an Affiliate of SBA Parent will require Rating Agency Confirmation. A replacement Manager who satisfies the foregoing shall be an “Acceptable Manager”.
Appears in 1 contract
Sources: Loan and Security Agreement (Sba Communications Corp)
Management Agreement. Except as otherwise provided below, Tenant shall not enter intonot, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior -------------------- written consent, which consent may be given amend or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to modify the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation provisions of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement which provide (i) that, from and after the occurrence of any Default or Event of Default, all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord Landlord, (ii) for operation of the Leased Property under the Lease"Wyndham" and "Wyndham Garden" names, (iii) that Wyndham, the Manager and their Affiliated Persons are prohibited from operating, managing or franchising another Wyndham Gardens hotel within the designated area on Exhibit ------- D and (iv) for termination thereof, at Landlord's option, upon the termination - of this Agreement. Tenant shall not take any action, grant any consent or permit any action under the Management Agreement which might have a material adverse effect on Landlord, without the prior written consent of Landlord; provided, however, that Landlord's consent shall not be required in connection -------- ------- with any assignment of the Manager's rights under the Management Agreement to (x) any Affiliated Person of Wyndham having the full power, right and authority to provide all services and organizational expertise as contemplated and required by the Management Agreement or (y) any Person (including, but not limited to, any Lending Institution) who acquires all or substantially all of the management contracts of Wyndham (including, without limitation, all of the Management Agreements with respect to the Collective Leased Properties that have not been theretofore cancelled or terminated pursuant to the terms thereof), provided that, in either such case, the Leased Property will retain the right to use the "Wyndham" and "Wyndham Garden" names. In the event of an assignment pursuant to clause (y) preceding, provided that the successor Manager (i) assumes, in writing all obligations of the Manager under the Management Agreement, and (bii) for has a Tangible Net Worth, as of the termination thereof upon date of assignment, equal to the termination greater of the Tangible Net Worth of Wyndham as of the date of this Agreement, and providedthe Tangible Net Worth of Wyndham as of the date of such assignment, further, that Landlord shall, if it succeeds to Tenant's rights Wyndham shall be released from all liabilities arising under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement from and after the effective date of such assignment. Tenant shall notnot agree to any change in the Manager (except as provided in the preceding sentences), to any change in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect(except as provided in the preceding sentences), then Tenant will modify the terms of terminate the Management Agreement so or permit the Manager to assign the Management Agreement (except as provided in the preceding sentences) without the prior written approval of Landlord in each instance; provided, however, that the Management Agreement, Manager may -------- ------- grant a security interest in the reasonable opinion of Landlord and its counsel, does not cause the Rent right to be so characterized receive payments under the Code. Landlord shall have no right to enforce TenantManagement Agreement without Landlord's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementprior written approval.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that Borrower shall cause Mezzanine A Borrower to cause Mortgage Borrower to (i) diligently and promptly perform, observe and enforce all of the terms, covenants and conditions (other than those of a de minimis nature) of the Management Agreement on the part of Mortgage Borrower to be performed, observed and all amounts due from Tenant to the Manager enforced, (ii) promptly notify Lender of any default (other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord those of a de minimis nature) under the Lease, Management Agreement of which Mortgage Borrower is aware; (iii) [reserved]; (iv) promptly give notice to Lender of any written notice or credible information that Mortgage Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants (other than those of a de minimis nature) required to be performed and observed by Manager under the Management Agreement.
(b) for Borrower shall not, without the termination thereof upon the termination prior written consent of this Agreement, and provided, further, that Landlord shall, if it succeeds Lender (not to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further thatdelayed) permit Mezzanine A Borrower to permit Mortgage Borrower to (i) surrender, except in respect terminate or cancel the Management Agreement; (ii) consent to any assignment of any the Manager’s interest under the Management Agreement entered (other than in accordance with Section 4.15(f) below); (iii) replace Manager or enter into pursuant any other management agreement with respect to the Property (other than in accordance with Section 14.3(c4.15(f) below); (iv) increase or consent to the increase of the management fees or any other material fees or charges under the Management Agreement; or (v) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, the terms Management Agreement in any material respect.
(c) During the continuance of an Event of Default under the Loan Documents, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 reasonably necessary to cause all the terms, covenants and conditions of the Management Agreement shall noton the part of Mortgage Borrower to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower, in Landlord's and its counsel's reasonable opinion, cause to the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude end that the terms rights of Mortgage Borrower in, to and under the Management Agreement will have shall be kept unimpaired and free from default. Upon prior written notice to Borrower, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property during the continuance of an Event of Default for the purpose of taking any such an effect, then Tenant will modify the terms action. If Manager shall deliver to Lender a copy of the Management Agreement so that any notice sent to Mortgage Borrower of default under the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent such notice shall constitute full protection to Lender for any action taken or omitted to be so characterized taken by Lender in good faith, in reliance thereon. Borrower shall not permit Mezzanine A Borrower to permit Mortgage Borrower to permit Manager to sub-contract to a third party (other than an Affiliate) any or all of its management responsibilities under the Code. Landlord shall have no right Management Agreement, provided, that Manager may sub-contract to enforce Tenant's rights a Qualified Manager the management responsibilities of Manager under a Management Agreement pursuant to a sub-management agreement, provided, that (1) the fees and charges payable under any such sub-management agreement do not exceed the management fees and charges payable to Manager under such Management Agreement and are the sole obligation of Manager, (2) any sub-management agreement terminates in the event of a termination of the Management Agreement, except with respect to the termination thereof following termination of this Agreement.and (3)
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant Lessee agrees to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and obtain Lessor's prior consent (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld) to the terms of any management or agency agreement relating to the management or operation of the Hotel (a "MANAGEMENT AGREEMENT"), conditioned or delayed any material amendment or modification thereto, under which the payment of management fees is not expressly subordinate to the payment of Rent hereunder on terms reasonably acceptable to Lessor (provided, however, management fees and provided further thatother amounts may be paid to the Manager so long as no Event of Default has occurred hereunder). Lessee shall, except in respect upon request, provide Lessor with a copy of any proposed Management Agreement. Lessee also shall provide Lessor with copies of any and all amendments or modifications of a Management Agreement which are entered into from time to time. Without limiting the generality of the foregoing, any Management Agreement entered into shall provide that (i) upon termination of this Lease or termination of Lessee's right to possession of the Leased Property for any reason other than a termination by Lessor pursuant to Section 14.3(c)2.5, the terms of -74- 83 the Management Agreement may be terminated by Lessor without liability for any payment due or to become due to the Hotel Manager, and (ii) except as provided in the Master Hotel Agreement, any management fees payable to any Affiliate of Lessee shall not, in Landlord's and its counsel's reasonable opinion, cause be expressly subordinated to the payments of Rent to fail Lessor hereunder (provided, however, management fees and other amounts may be paid to qualify the Manager so long as "rents no Event of Default has occurred hereunder), and no fees or other amounts payable by Lessee to the Manager shall excuse Lessee from real property" within its obligations to pay Rent and other amounts payable by Lessee to Lessor hereunder. Lessor shall have the meaning right to approve in advance any Manager who is not an Affiliate of Section 856(dLessee.
(b) In the event that Lessor in good faith has concerns regarding the character, conduct or performance of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms General Manager of the Management Agreement Hotel, Lessee and Manager will have such an effectconsult with Lessor to discuss Lessor's concerns and attempt to address any deficiencies in character, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementconduct or performance.
Appears in 1 contract
Management Agreement. Except as otherwise provided below(a) As of the Execution Date, Tenant shall not enter into, amend, surrender or modify any the Management Agreement shall be in full force and effect and Manager shall have no defenses or claims against Trustor with a Person that is not an Affiliated Person as to Marriott respect thereto. Any new or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority subsequent agreements providing for the day-to-day management and operation of the Leased Property Hyatt Regency at Aventine Hotel shall be subject to Manager provided that any such Beneficiary’s approval
(b) The Management Agreement shall provide be subordinated to the lien of the Deed of Trust pursuant to an Assignment and Subordination of Management Agreement and Consent of Manager dated as of the date of this Deed of Trust, and further shall be assigned to MetLife as additional security for the Loan.
(ac) that Notwithstanding any provision to the contrary contained herein or in the other Loan Documents, the Trustor and Operating Lessee may not amend, modify, supplement, alter or waive any right under the Management Agreement without the written consent of Beneficiary, provided however, without any requirement for consent, Trustor and Operating Lessee may agree to any nonmaterial modification, change, supplement, alteration or amendment to the Management Agreement and all amounts waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect the cash management procedures set forth in the Management Agreement or the Loan Documents, decrease the cash flow of the Property, adversely affect the marketability of the Property, change the definitions of "default" or "event of default," change the definitions of "operating expense" or words of similar meaning to add additional items to or delete items from such definitions, change the definitions of "available cash flow”, “gross operating profit”, “gross revenues” so as to reduce the payments due from Tenant the Trustor thereunder, change the definition of "debt service ", “owner equity” or “owner remittance amount”, change the timing of remittances to the Manager other than Trustor or Operating Lessee thereunder, change the System feepriority of distributions of “available cash flow” to Trustor or Operating Lessee thereunder, shall be subordinate to increase or decrease reserve requirements, change the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms term of the Management Agreement shall not, or increase any Management Fees (as defined in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized ) payable under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement.
(d) Notwithstanding the foregoing, except Trustor or Operating Lessee may enter into a new Management Agreement approved by Beneficiary with respect an Acceptable Manager (as hereinafter defined).
(i) For purposes of this Section, and subject to subsection (iii) below, "Acceptable Manager" shall mean (a) the current Manager and current brand as of the Execution Date and, at any time prior to two years after the Execution Date, the property managers and brands of Acceptable Manager listed in (ii) below, provided (x) each such property manager or brand continues to be controlled by substantially the same Persons Controlling (as defined in Section 10.4 (d)) such property manager or brand as of the Execution Date (or if such manager is a publicly traded company, such manager continues to be publicly traded on an established securities market), and (y) such property manager has under management, at the time of its engagement as manager, not fewer than 20 first class full service resort or business hotel properties (excluding the Property) containing not fewer than 5,000 hotel rooms in the aggregate; (b) during such two year period, any Close Affiliate (as defined in Section 10.4(d)) of any of the foregoing Persons so long as such Close Affiliate continues to be Controlled by substantially the same Persons Controlling such Close Affiliate as of the Execution Date (or if such close affiliate is a publicly traded company, such Close Affiliate continues to be publicly traded on an established securities market); or (c) any other reputable and experienced professional hotel management company (A) which, or a Close Affiliate of which, shall have at least five years' experience in the management of hotel properties substantially similar in size and complexity to the termination thereof following termination Property, (B) which, or a Close Affiliate of this Agreementwhich, shall have under management, at the time of its engagement as Manager, not fewer than 20 first class full service resort or business hotel properties (excluding the Property) containing not fewer than 5,000 hotel rooms in the aggregate, and (C) approved in writing by Beneficiary.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that Borrower shall cause Mezzanine A Borrower to cause Mortgage Borrower to (i) diligently and promptly perform, observe and enforce all of the terms, covenants and conditions (other than those of a de minimis nature) of the Management Agreement on the part of Mortgage Borrower to be performed, observed and all amounts due from Tenant to the Manager enforced, (ii) promptly notify Lender of any default (other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord those of a de minimis nature) under the Lease, Management Agreement of which Mortgage Borrower is aware; (iii) [reserved]; (iv) promptly give notice to Lender of any written notice or credible information that Mortgage Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants (other than those of a de minimis nature) required to be performed and observed by Manager under the Management Agreement.
(b) for Borrower shall not, without the termination thereof upon the termination prior written consent of this Agreement, and provided, further, that Landlord shall, if it succeeds Lender (not to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed delayed) permit Mezzanine A Borrower to permit Mortgage Borrower to (i) surrender, terminate or cancel the Management Agreement; (ii) consent to any assignment of the Manager’s interest under the Management Agreement (other than in accordance with Section 4.15(f) below); (iii) replace Manager or enter into any other management agreement with respect to the Property (other than in accordance with Section 4.15(f) below); (iv) increase or consent to the increase of the management fees or any other material fees or charges under the Management Agreement; or (v) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and provided further thatremedies under, except the Management Agreement in respect any material respect.
(c) During the continuance of an Event of Default under the Loan Documents, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 reasonably necessary to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Upon prior written notice to Borrower, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property during the continuance of an Event of Default for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under the Management 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. Borrower shall not permit Mezzanine A Borrower to permit Mortgage Borrower to permit Manager to sub-contract to a third party (other than an Affiliate) any or all of its management responsibilities under the Management Agreement, provided, that Manager may sub-contract to a Qualified Manager the management responsibilities of Manager under a Management Agreement entered into pursuant to Section 14.3(c)a sub-management agreement, provided, that (1) the fees and charges payable under any such sub-management agreement do not exceed the management fees and charges payable to Manager under such Management Agreement and are the sole obligation of Manager, (2) any sub-management agreement terminates in the event of a termination of the Management Agreement, and (3) neither Mortgage Borrower, Mezzanine A Borrower nor Borrower shall have any obligations or liabilities under any such sub-management agreement.
(d) Borrower shall, from time to time, use commercially reasonable efforts to obtain from Manager under the Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause as may be requested by Lender.
(e) In the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant event that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effectis scheduled to expire at any time during the term of the Loan, then Tenant will modify the terms of then, unless the Management Agreement so that is subject to automatic renewals without any action to be taken on the part of any Person (and the Management Agreement is in fact automatically extended) Borrower shall submit to Lender by no later than forty-five (45) days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof.
(f) Borrower shall have the right to permit Mezzanine A Borrower to permit Mortgage Borrower to replace Manager or consent to the assignment of Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and its counselis continuing, does (ii) Lender receives, in the case of an assignment to a Manager who is not cause an Affiliated Manager, at least forty-five (45) days and, in the Rent case of an assignment to an Affiliated Manager, at least fifteen (15) days prior written notice of the same, and consents (not to be unreasonably withheld, conditioned or delayed) to such replacement (and the replacement Manager), (iii) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement and (iv) all the other conditions relating to a termination of the Management Agreement and replacement of the Manager set forth in the Assignment of Management Agreement are satisfied. If and for so characterized under long as Manager is an Affiliate of Borrower, Borrower shall not permit Mezzanine A Borrower to permit Mortgage Borrower to permit Manager to resign as Manager or otherwise cease managing the Code. Landlord shall have no right Property until a New Manager approved by Lender is engaged to enforce Tenant's rights under any such manage the Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(g) Without limitation of the foregoing, if the Management Agreement is terminated or expires pursuant to the Subordination of Management Agreement, except ceases to be in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender may require Borrower to cause Mortgage Borrower to engage, in accordance with the terms and conditions set forth herein and in the Subordination of Management Agreement, a New Manager to manage the Property, which such New Manager shall be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(h) As conditions precedent to any engagement of a New Manager hereunder, (i) such New Manager, Mortgage Borrower, Mezzanine A Borrower and Borrower shall execute a subordination of management agreement in the form reasonably required by Lender and (ii) to the extent that a Non-Consolidation Opinion was previously delivered, to the extent that such New Manager is an Affiliated Manager, if requested in writing by Lender, Borrower shall deliver to Lender, a New Non-Consolidation Opinion with respect to such New Manager and new management agreement
(i) Intentionally omitted.
(j) Any reasonable out-of-pocket costs expended by Lender pursuant to this Section 4.15 shall bear interest at the termination thereof following termination Default Rate from the date that is ten (10) Business Days after Lender demands payment from Borrower to the date of this Agreementpayment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Management Agreement. Except as otherwise provided belowLessee agrees that in order to comply with certain of the REIT Requirements, Tenant it will, at all times, during the Term cause the Leased Property to be operated and managed by a management company ("Manager") that is an Eligible Independent Contractor. Lessee shall provide Lessor with an executed copy of all agreements relating to the management or operation of the Hotel (a "Management Agreement"). Lessor shall have the right in its sole and absolute discretion to approve or disapprove in advance any Manager or proposed Manager of the Hotel which is not enter into, amend, surrender or modify any a Qualified Manager. Any Management Agreement with a Person must provide that is not an Affiliated Person as (a) upon termination of this Lease or termination of Lessor's or Lessee's right to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation possession of the Leased Property to Manager provided that for any such Management Agreement shall provide (a) that reason, the Management Agreement and all amounts may be terminated by Lessor without liability for any payment due from Tenant or to become due to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and thereunder; (b) for any management fees shall be subordinated to payments of Rent to Lessor hereunder; and (c) in the termination thereof upon event Lessee is in default, the termination Manager shall, at the election of this AgreementLessor and provided the Manager continues to be paid, and provided, further, that Landlord shall, if it succeeds Lessor (or any party acting by or through Lessor) agrees to Tenantperform Lessee's rights other obligations to Manager under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant which accrue subsequent to Section 14.3(c)the date Lessor makes such election, continue to perform under the terms of the Management Agreement for a period not to exceed ninety (90) days, provided that such election by Lessor shall not, not constitute a waiver by Lessor of any rights or remedies Lessor may have as a result of Lessee's default. No fees or other amounts payable by Lessee to any Manager shall excuse Lessee from its obligations to pay Rent and other amounts payable by Lessee to Lessor hereunder. No Management Agreement may be amended or modified in Landlord's and its counsel's reasonable opinion, cause any manner which materially affects the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) subordination of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that management fees without the terms prior written consent of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLessor.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant (A) The Borrowers shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Sites in accordance with the Management Agreement. The Borrowers shall (i) perform and subject observe all of the material terms, covenants and conditions of the Management Agreement on the part of each Borrower to be performed and observed, (ii) promptly notify Lender of any notice to any of the Owner AgreementBorrowers of any material default under the Management Agreement of which they are aware, without Landlord's consent, enter into, and/or terminate, and (iii) prior to termination of Manager in accordance with their respective termsSection 5.11(C), the Borrowers shall renew the Management Agreements Agreement prior to each expiration date thereunder in accordance with its Affiliated Persons terms. If the Borrowers shall default in the performance or Marriott and also with other Persons pursuant to Sections 4.1.1(b)observance of any material term, 14.3(c) and 0 delegating operational authority for the day-to-day operation covenant or condition of the Leased Property to Manager provided that any such Management Agreement on the part of the Borrowers to be performed or observed, then, without limiting Lender’s other rights or remedies under this Loan Agreement or the other Loan Documents, and without waiving or releasing the Borrowers from any of their obligations hereunder or under the Management Agreement, Lender shall provide have the right, upon prior written notice to the Borrowers, but shall be under no obligation, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement on the part of the Borrowers to be performed or observed. If the Borrowers fail to renew the Management Agreement, Lender has the right, but not the obligation, to renew the Management Agreement within ten (a10) Business Days’ of receipt of notice from Manager that the Management Agreement and all amounts due from Tenant to the Manager will terminate unless otherwise renewed.
(B) The Borrowers shall not surrender, terminate, cancel, or modify other than the System feenon-material changes, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, or enter into any other Management Agreement with any new Manager, other than an Acceptable Manager (under a management agreement substantially similar in all material respects to the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such initial Management Agreement, except that the Management Fee thereunder shall be an amount agreed by the successor Manager not to exceed 7.5% of Operating Revenues), or consent to the assignment by Manager of its interest under the Management Agreement, other than to an Acceptable Manager, in each case without delivery of Rating Agency Confirmations from each of the Rating Agencies (which Rating Agency Confirmation may not be deemed satisfied pursuant to Section 11.13 of the Trust Agreement) and the written consent of Lender. In any case, the Borrowers shall deliver to Lender copies of all material modifications, amendments and supplements to the Management Agreement promptly upon execution thereof. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall become Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Borrowers shall, as a condition of Lender’s consent, or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the termination thereof form delivered in connection with the closing of the Loan.
(C) Lender shall have the right to terminate the Management Agreement and require that Manager be replaced with a Person chosen by the Borrowers (or, if an Event of Default has occurred and is then continuing, Lender) and reasonably acceptable to Lender, upon the earliest to occur of any one or more of the following termination events: (i) an Event of this Default has occurred and is then continuing, (ii) thirty (30) days after notice from Lender to the Borrowers if Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Management Agreement, (iii) thirty (30) days after notice from Lender to the Borrowers following the latest Maturity Date of any Component then outstanding, (iv) if the DSCR is less than 1.1:1 as of the end of any calendar quarter and Lender reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of Manager rather than factors affecting the Borrowers’ industry generally or (v) a default by Manager in the performance of its obligations under the Management Agreement, which default could reasonably be expected to have a Material Adverse Effect, and such default remains unremedied for thirty (30) days following written notice to Manager. The appointment of any Person chosen by the Borrowers (or Lender) to be successor Manager will require Rating Agency Confirmation (which Rating Agency Confirmation may not be deemed satisfied pursuant to Section 11.13 of the Trust Agreement). A replacement Manager who satisfies the foregoing shall be an “Acceptable Manager”.
Appears in 1 contract
Sources: Loan and Security Agreement (American Tower Corp /Ma/)
Management Agreement. Except as otherwise provided below(a) The Co-Issuers shall, Tenant and shall not enter intocause the Asset Entities to, amend(i) perform and observe all of the material terms, surrender or modify any covenants and conditions of the Management Agreement with a Person that is not an Affiliated Person as on the part of each Asset Entity to Marriott or Crestline without Landlord's prior written consentbe performed and observed, (ii) promptly notify the Indenture Trustee of any notice to any of the Asset Entities of any material default under the Management Agreement of which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to timeit has Knowledge, and (iii) prior to termination of the Manager in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement shall notAgreement, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of renew the Management Agreement will have such an effectprior to each expiration date thereunder in accordance with its terms.
(b) The Co-Issuers shall not permit the Asset Entities to surrender, then Tenant will terminate, cancel, or modify the terms of (other than non-material changes), the Management Agreement, or enter into any other Management Agreement so that with any new Manager, or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of a Rating Agency Confirmation.
(c) The Indenture Trustee (acting solely at the reasonable opinion direction of Landlord the Controlling Class Representative (or, if none, at the direction of the Majority Noteholders)) shall have the right to require that the Manager be replaced in the manner set forth in Section 19(b) of the Management Agreement following the occurrence and continuation of a Manager Termination Event pursuant to Section 19(b) of the Management Agreement.
(d) The Indenture Trustee is permitted to utilize and in good faith rely upon the advice of the Manager in performing certain of its counselobligations under this Base Indenture and the other Transaction Documents, does not cause including, without limitation, confirmation of compliance by the Rent to be so characterized Obligors with the provisions of this Base Indenture and under the Codeother Transaction Documents, and the Indenture Trustee shall not have any liability with respect thereto. Landlord In addition, the Indenture Trustee shall have no right obligation to enforce Tenant's rights under calculate, determine, confirm or verify any such Management Agreementamounts hereunder, except with respect to including any Prepayment Consideration, Accrued Note Interest, Amortization Period, Class A LTV, mandatory prepayments required during an Expense Cash Flow Sweep Period, Undepreciated Book Value, DSR or Post-ARD Additional Interest and may rely conclusively on the termination calculations or determinations thereof following termination by the Manager’s (or any Class A-1 Administrative Agent in the case of this Agreementthe Accrued Note Interest for any Variable Funding Notes).
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant (i) Borrower shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time manage the Property and to time, lease and market the residential units of the Property in accordance with the Management Agreement. Borrower shall (A) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed and observed, (B) promptly notify Lender of any written notice received by Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed, (C) upon Lender’s request, promptly deliver to Lender a copy of each financial statement, business plan, leasing plan, capital expenditures plan, report and estimate received by it under the Management Agreement, and upon request by Lender, shall cause Manager to provide Lender with reports in regard to the leasing efforts of the residential units at the Property, and (D) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by Manager under the Management Agreement. If Borrower shall default (beyond the expiration of applicable notice and cure periods under the Management Agreement) in the performance or observance of any term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting Lender’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder or under the Management Agreement, as applicable, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be necessary to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed. Borrower hereby agrees to pay to Lender promptly following demand, all such reasonable, out of pocket sums so paid and expended by Lender in connection therewith, together with interest thereon at the Default Rate from the day on which Borrower receives such demand until paid. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage.
(ii) Borrower shall use commercially reasonable efforts to cause Manager to deliver to Lender, within thirty (30) days of request, an estoppel certificate from Manager, in form and substance reasonably satisfactory to Lender; provided that Borrower shall not be required to request or deliver such certificates more frequently than one (1) time in any twelve (12) month period (other than in connection with an Event of Default that is continuing or a Secondary Market Transaction).
(iii) To the extent that Borrower fails to perform any obligation under the Management Agreement, subject to any applicable notice and cure periods under the Owner Management Agreement, and, provided that, Borrower fails to cure such failure within ten (10) Business Days of receipt of written notice from Lender of such failure, Borrower hereby grants to Lender the right, as Borrower’s, as applicable, attorney-in-fact (which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest), to perform any such obligation and, if required, to enter the Property (subject to applicable laws, the Permitted Encumbrances and the rights of Tenants) in order to perform the same, including, without Landlord's consentlimitation, enter intothe execution and delivery of all such writings necessary to transfer any licenses with respect to the Property into the name of Lender or its designee after the occurrence and during the continuance of an Event of Default. The aforesaid right of Lender shall be exercisable by Lender at Lender’s option and in Lender’s sole discretion.
(iv) Borrower shall not surrender, and/or terminate, in accordance with their respective termscancel, modify, renew or extend the Management Agreements with its Affiliated Persons Agreement, or Marriott and also with enter into any other Persons pursuant agreement relating to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day management or operation of the Leased Property with Manager or any other Person, or consent to the assignment by the Manager provided that any such Management Agreement shall provide (a) that of its interest under the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord (except as expressly permitted under the Leaseterms of the Management Agreement), or waive or release any of its rights and (b) for remedies under the termination thereof upon the termination of this Management Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and in each management agreement shall so provide, be bound only by case without the last management agreement or amendment thereto to which it consentedexpress consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed delayed.
(v) Lender shall have the right to require Borrower to replace the Manager with a Person which is not an Affiliate of, but is chosen by, Borrower and provided further thatapproved by Lender (such approval not to be unreasonably withheld, except in respect conditioned or delayed) upon the occurrence of any Management Agreement entered into pursuant to Section 14.3(c)one or more of the following events: (i) at any time following the occurrence and during the continuance of an Event of Default, the terms of (ii) if Manager shall be insolvent or a debtor in a bankruptcy proceeding, (iii) if Manager shall be in material default under the Management Agreement shall notbeyond any applicable notice and cure period, (iv) if at any time for cause, including without limitation, if Manager has engaged in Landlord's and its counsel's reasonable opiniongross negligence, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(dfraud or willful misconduct, or (v) upon a change in Control of the CodeManager.
(vi) Borrower shall not permit the management fee, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of any, to be paid to Manager under the Management Agreement will have such an effect, then Tenant will modify the terms to exceed three percent (3.0%) of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementOperating Income.
Appears in 1 contract
Sources: Loan Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that Borrower shall cause Mortgage Borrower to (i) diligently and promptly perform, observe and enforce all of the terms, covenants and conditions (other than those of a de minimis nature) of the Management Agreement on the part of Mortgage Borrower to be performed, observed and all amounts due from Tenant to the Manager enforced, (ii) promptly notify Lender of any default (other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord those of a de minimis nature) under the Lease, Management Agreement of which Mortgage Borrower is aware; (iii) [reserved]; (iv) promptly give notice to Lender of any written notice or credible information that Mortgage Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants (other than those of a de minimis nature) required to be performed and observed by Manager under the Management Agreement.
(b) for Borrower shall not, without the termination thereof upon the termination prior written consent of this Agreement, and provided, further, that Landlord shall, if it succeeds Lender (not to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed delayed) permit Mortgage Borrower to (i) surrender, terminate or cancel the Management Agreement; (ii) consent to any assignment of the Manager’s interest under the Management Agreement (other than in accordance with Section 4.15(f) below); (iii) replace Manager or enter into any other management agreement with respect to the Property (other than in accordance with Section 4.15(f) below); (iv) increase or consent to the increase of the management fees or any other material fees or charges under the Management Agreement; or (v) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and provided further thatremedies under, except the Management Agreement in respect any material respect.
(c) During the continuance of an Event of Default under the Loan Documents, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 reasonably necessary to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Upon prior written notice to Borrower, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property during the continuance of an Event of Default for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under the Management 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. Borrower shall not permit Mortgage Borrower to permit Manager to sub-contract to a third party (other than an Affiliate) any or all of its management responsibilities under the Management Agreement, provided, that Manager may sub-contract to a Qualified Manager the management responsibilities of Manager under a Management Agreement entered into pursuant to Section 14.3(c)a sub-management agreement, provided, that (1) the fees and charges payable under any such sub-management agreement do not exceed the management fees and charges payable to Manager under such Management Agreement and are the sole obligation of Manager, (2) any sub-management agreement terminates in the event of a termination of the Management Agreement, and (3) neither Mortgage Borrower nor Borrower shall have any obligations or liabilities under any such sub-management agreement.
(d) Borrower shall, from time to time, use commercially reasonable efforts to obtain from Manager under the Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause as may be requested by Lender.
(e) In the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant event that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effectis scheduled to expire at any time during the term of the Loan, then Tenant will modify the terms of then, unless the Management Agreement so that is subject to automatic renewals without any action to be taken on the part of any Person (and the Management Agreement is in fact automatically extended) Borrower shall submit to Lender by no later than forty-five (45) days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof.
(f) Borrower shall have the right to permit Mortgage Borrower to replace Manager or consent to the assignment of Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and its counselis continuing, does (ii) Lender receives, in the case of an assignment to a Manager who is not cause an Affiliated Manager, at least forty-five (45) days and, in the Rent case of an assignment to an Affiliated Manager, at least fifteen (15) days prior written notice of the same, and consents (not to be unreasonably withheld, conditioned or delayed) to such replacement (and the replacement Manager), (iii) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement and (iv) all the other conditions relating to a termination of the Management Agreement and replacement of the Manager set forth in the Assignment of Management Agreement are satisfied. If and for so characterized under long as Manager is an Affiliate of Borrower, Borrower shall not permit Mortgage Borrower to permit Manager to resign as Manager or otherwise cease managing the Code. Landlord shall have no right Property until a New Manager approved by Lender is engaged to enforce Tenant's rights under any such manage the Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(g) Without limitation of the foregoing, if the Management Agreement is terminated or expires pursuant to the Subordination of Management Agreement, except ceases to be in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender may require Borrower to cause Mortgage Borrower to engage, in accordance with the terms and conditions set forth herein and in the Subordination of Management Agreement, a New Manager to manage the Property, which such New Manager shall be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(h) As conditions precedent to any engagement of a New Manager hereunder, (i) such New Manager, Mortgage Borrower and Borrower shall execute a subordination of management agreement in the form reasonably required by Lender and (ii) to the extent that a Non‑Consolidation Opinion was previously delivered, to the extent that such New Manager is an Affiliated Manager, if requested in writing by Lender, Borrower shall deliver to Lender, a New Non-Consolidation Opinion with respect to such New Manager and new management agreement.
(i) Intentionally omitted.
(j) Any reasonable out-of-pocket costs expended by Lender pursuant to this Section 4.15 shall bear interest at the termination thereof following termination Default Rate from the date that is ten (10) Business Days after Lender demands payment from Borrower to the date of this Agreementpayment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Management Agreement. Except (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) until the occurrence of a Manager Trigger, any covenants and other provisions contained herein specifically relating to Manager, New Manager, Affiliated Manager and/or the Management Agreement and, in each case, contemplating the existence of a New Manager, Manager, Affiliated Manager and Management Agreement for the Property (in each case, as applicable) shall, in each case, be deemed to apply only as and to the extent applicable (provided, that, Borrower complies with the terms and conditions of this subsection (a)), (ii) Borrower shall, until a New Manager is engaged to manage the Property in accordance with the applicable terms and conditions hereof, at all times directly undertake and perform the duties of a property manager at the Property and otherwise provided belowcomply with the applicable covenants contained herein and in the other Loan Documents related thereto (the foregoing, Tenant the “Self-Management Obligations”), (iii) upon the occurrence of a Trigger Period, Lender, at its option, may require Borrower to engage, in accordance with the terms and conditions set forth herein, a New Manager to manage the Property, which such New Manager shall not enter intobe (A) selected by Borrower and subject to Lender’s approval and (B) a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement
(b) Borrower shall (i) diligently and promptly perform, amendobserve and enforce all of the terms, surrender covenants and conditions of the Management Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement, (ii) promptly notify Lender of any default under the Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or modify other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.
(c) Borrower shall not, without the prior written consent of Lender, (i) surrender, terminate or cancel the Management Agreement, consent to any assignment of the Manager’s interest under the Management Agreement or otherwise replace Manager or renew or extend any Management Agreement (exclusive of, in each case, any automatic renewal or extension in accordance with a Person its terms) or enter into any other new or replacement management agreement with respect to the Property; provided, however, that is not an Affiliated Person Borrower may replace Manager and/or consent to the assignment of Manager’s interest under the Management Agreement, in each case, in accordance with the applicable terms and conditions hereof and of the other Loan Documents; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, alter or amend, in any material respect, or waive or release any of its material rights and remedies under, the Management Agreement in any material respect.
(d) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing 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 to Marriott or Crestline without Landlord's prior written consent, which consent may be given appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or withheld observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in Landlord's sole but reasonable discretiongood faith, in reliance thereon. Tenant may Borrower shall notify Lender if Manager sub-contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement.
(e) Borrower shall, from time to time, and in accordance with and subject use its best efforts to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to obtain from Manager provided that any such Management Agreement shall provide (a) that under the Management Agreement and all amounts due from Tenant such certificates of estoppel with respect to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only compliance by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall notexercise each individual option, in Landlord's and its counsel's reasonable opinionif any, cause to extend or renew the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms term of the Management Agreement will have upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an effect, then Tenant will modify interest.
(f) In the terms of event that the Management Agreement so that is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 60 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof. Borrower’s failure to submit the same within such time-frame shall, at Lender’s option, constitute an immediate Event of Default.
(g) Borrower shall have the right to replace Manager or consent to the assignment of Manager’s rights under the Management Agreement, in each case, to the reasonable opinion extent that (i) no Event of Landlord Default has occurred and is continuing, (ii) Lender receives at least sixty (60) days prior written notice of the same, (iii) such replacement or assignment (as applicable) will not result in a Property Document Event and (iv) the applicable New Manager is a Qualified Manager engaged pursuant to a Qualified Management Agreement. Manager shall not (and Borrower shall not permit Manager to) resign as Manager or otherwise cease managing the Property until a New Manager is engaged to manage the Property in accordance with the applicable terms and conditions hereof and of the other Loan Documents.
(h) Without limitation of the foregoing, if Borrower fails to perform the Self-Management Obligations or if, after the first occurrence of the Manager Trigger, if the Management Agreement is terminated or expires (including, without limitation, pursuant to the Assignment of Management Agreement), comes up for renewal or extension (exclusive of, in each case, any automatic renewal or extension in accordance with its counselterms), does not cause the Rent ceases to be so characterized under in full force or effect or is for any other reason no longer in effect (including, without limitation, in connection with any Sale or Pledge), then Lender, at its option, may require Borrower to engage, in accordance with the Code. Landlord shall have no right to enforce Tenant's rights under any such terms and conditions set forth herein and in the Assignment of Management Agreement, except a New Manager to manage the Property, which such New Manager shall (i) to the extent a Trigger Period is continuing and if opted by Lender, selected by Lender and (ii) be a Qualified Manager and shall be engaged pursuant to a Qualified Management Agreement.
(i) As conditions precedent to any engagement of a New Manager hereunder, (i) New Manager and Borrower shall execute an Assignment of Management Agreement in the form required by Lender (with such changes thereto as may be required by the Rating Agencies), (ii) to the extent that such New Manager is an Affiliated Manager, Borrower shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and new management agreement and (iii) if requested by Lender, Borrower shall deliver to Lender evidence that the engagement of such New Manager will not result in a Property Document Event.
(j) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination thereof following fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for replacing such Manager and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender). The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to any “cap” or similar limit on the amount of Reserve Funds held by Lender.
(k) Any sums expended by Lender pursuant to this AgreementSection 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 Debt, shall be secured by the lien of the Security Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's (a) Without the prior written consentconsent of Administrative Agent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, neither Borrower nor Operating Lessee shall enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority into any agreement providing for the day-to-day management, leasing or operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that other than the Management Agreement and all amounts due from Tenant to or the Manager other than Operating Lease effective on the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and Effective Date).
(b) Any agreement providing for the termination thereof upon management or operation of the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each Property entered into after the date hereof shall be with a Replacement Manager. In the event Administrative Agent disapproves a management agreement with a Replacement Manager, Borrower shall so providehave the right to prepay the Loan in full without penalty.
(c) Each of Borrower and Operating Lessee shall not, be bound only by without Administrative Agent’s prior consent (except as elsewhere herein-expressly provided): (i) surrender, cancel or terminate the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement (unless the Manager is being replaced with a Replacement Manager pursuant to a new Management Agreement that has been approved by Administrative Agent), or permit or suffer any significant delegation or contracting of the Manager’s duties unless the Manager has the right to do so under the Management Agreement without the consent of Borrower and/or the Operating Lessee or unless such delegation or contracting would not constitute a Material Contract if entered into pursuant by Borrower and/or the Operating Lessee itself, or (ii) modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Management Agreement in any material respect; provided however Borrower or Operating Lessee shall be permitted to Section 14.3(c)make any non-material modification, the terms change, supplement, alteration, amendment or waiver of the Management Agreement provided that such modification, amendment or waiver shall notnot affect the cash management procedures set forth in the Management Agreement or the Loan Documents, in Landlord's and its counsel's reasonable opinion, cause decrease the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) cash flow of the CodeProperty, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that adversely affect the terms marketability of the Property, change the definitions of “default” or “event of default,” change the definitions of “operating expense” or words of similar meaning, change the definitions of “owner’s distribution” or “owner’s equity” or “debt service amount” or words of similar meaning so as to reduce the payments due Borrower or Operating Lessee thereunder, change the timing of remittances to Borrower or Operating Lessee thereunder, increase or decrease reserve requirements, change the term of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that or increase any management fees payable under the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not If the Lessee decides to enter into, amend, surrender into a management or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject agency agreement relating to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons management or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property Facility (collectively, the "Management Agreement"), Lessor shall have the right to Manager provided that any such Management Agreement shall provide (a) that approve the Management Agreement and all amounts due from Tenant , any modifications to the Manager Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and any other than the System fee, shall be subordinate material modification to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Management Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant. Lessor's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent approval shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any . The Management Agreement entered into pursuant shall provide, among other things, that (i) upon termination of this Lease or termination of Lessee's right to Section 14.3(cpossession of the Leased Property for any reason whatsoever, the Management Agreement may be terminated by Lessor without liability for any payment due or to become due to the manager of the Facility (the "Manager"), and (ii) all fees and other amounts payable by Lessee to the Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the existence of an Event of Default, and shall be at all times subordinate to Rent and such other amounts after the occurrence of an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel --------------------------------------------------------------- Certificates and Covenants. --------------------------
(a) At any time and from time to time upon not less than 10 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the terms date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter and any prospective purchaser of the Management Agreement Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to- date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall notbe paid by Lessor;
(v) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in Landlordits discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary to confirm compliance by Lessee and its counsel's reasonable opinionAffiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, cause a balance sheet, and detailed profit and loss and cash flow statements showing the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) financial position of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that Facility as at the terms end of the Management Agreement will have such an effectpreceding calendar quarter, then Tenant will modify the terms results of operation of the Management Agreement so Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense.
(c) At any time and from time to time upon not less than 10 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the Management Agreementmodifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the reasonable opinion form required, to the inclusion in the submission or filing of Landlord and its counselthe Consolidated Financials (including the report of the auditor, does not cause if the Rent Consolidated Financials to be so characterized under included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the Codepurpose of minimizing costs and delays. Landlord Lessee shall have no right reasonably cooperate with all requests made by its auditor, Lessor or the SEC to enforce Tenantpromptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's rights under any such Management Agreement, except Discussion and Analysis of Results of Operations and Financial Condition with respect to the termination thereof following termination of this AgreementLessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 1 contract
Management Agreement. Except as otherwise provided belowBorrowers shall maintain, Tenant shall not enter intoor cause to be maintained, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement in full force and effect and timely perform all amounts due from Tenant to of Borrowers’ obligations thereunder and enforce performance of all obligations of the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Leasethereunder, and (b) for except as otherwise permitted by the Loan Documents, not permit the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consentedof the Management Agreement unless the prior written consent of Lender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed delayed. Borrowers shall cause the Manager to enter into an assignment and provided further that, except subordination of the management agreement in respect form satisfactory to Lender (the "Subordination of any Management Agreement"). The Subordination of Management Agreement entered into shall assign and subordinate the Manager’s interests in the Property and all fees and other rights of the Manager pursuant to Section 14.3(c), the terms of the Management Agreement shall notto the rights of Lender. Upon an Event of Default, in Landlord's and its counsel's reasonable opinionBorrowers shall, at Lender’s request made at any time while such Event of Default continues, terminate, or cause the Rent termination of, the Management Agreement. Borrowers shall not enter into any agreement relating to fail the management of the Property with any party without the express written consent of Lender (which consent shall not be unreasonably withheld to qualify as "rents from real property" within the meaning extent that such manager is an affiliate of Section 856(dBorrowers); provided, however, with respect to a new manager such consent may also be conditioned upon Borrowers delivering (i) a Rating Comfort Letter with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the sense of clause (ii) of the Codedefined term "Control") by the REIT), it being agreed by Tenant that if Landlord and its counsel reasonably conclude (ii) evidence satisfactory to Lender (which shall include, at the request of Lender, a legal non-consolidation opinion acceptable to Lender) that the terms single purpose nature and bankruptcy remoteness of Borrowers, their shareholders, partners or members, as the case may be, after the engagement of the Management Agreement will have such an effect, then Tenant will modify new manager are in accordance with the terms requirements of the Management Agreement so that Rating Agencies. If at any time Lender consents to the Management Agreementappointment of a new manager, such new manager and Borrowers shall, as a condition of Lender’s consent, execute an assignment and subordination of such management agreement in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementform then used by Lender.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant shall not enter intonot, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given amend or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to modify the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation provisions of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement which provide (i) that, from and after the occurrence of any Default or Event of Default, all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord Landlord, (ii) for operation of the Leased Property under the Lease"Wyndham" name, (iii) that Wyndham, the Manager and their Affiliated Persons are prohibited from operating, managing or franchising another full-service Wyndham Hotel (as opposed to Wyndham Garden or resort hotels) within the designated area on Exhibit D and (biv) for the termination thereof thereof, at Landlord's option, upon the termination of this Agreement. Tenant shall not take any action, and grant any consent or permit any action under the Management Agreement which might have a material adverse effect on Landlord, without the prior written consent of Landlord; provided, furtherhowever, that Landlord shall, if it succeeds to TenantLandlord's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except 49 -40- required in respect connection with any assignment of any Management Agreement entered into pursuant to Section 14.3(c), the terms of Manager's rights under the Management Agreement shall not, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d(x) any Affiliated Person of the CodeManager having the full power, it being agreed right and authority to provide all services and organizational expertise as contemplated and required by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effector (y) any Person (including, then Tenant will modify the terms but not limited to, any Lending Institution) who acquires all or substantially all of the Management Agreement so management contracts of the Manager, provided that, in either such case, the Leased Property will retain the right to use the "Wyndham" name. In the event of an assignment pursuant to clause (y) preceding, provided that the successor Manager (i) assumes, in writing all obligations of the Manager under the Management Agreement, in and (ii) has a Tangible Net Worth, as of the reasonable opinion date of Landlord and its counselassignment, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect equal to the termination thereof following termination greater of the Tangible Net Worth of the Manager as of the date of this Agreement, and the Tangible Net Worth of the Manager as of the date of such assignment, the Manager shall be released from all liabilities arising under the Management Agreement from and after the effective date of such assignment. Tenant shall not agree to any change in the Manager (except as provided in the preceding sentences), to any change in the Management Agreement (except as provided in the preceding sentences), terminate the Management Agreement or permit the Manager to assign the Management Agreement (except as provided in the preceding sentences) without the prior written approval of Landlord in each instance; provided, however, that the Manager may grant a security interest in its right to receive payments under the Management Agreement without Landlord's prior written approval.
Appears in 1 contract
Sources: Lease Agreement (Wyndham Hotel Corp)
Management Agreement. Except as otherwise provided below, Tenant shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time(a) The Issuer shall, and shall cause its Subsidiaries to, cause the Manager to manage the Properties in accordance with the Management Agreement. The Issuer shall, and subject to shall cause its Subsidiaries to, (1) perform and observe all of the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective material terms, Management Agreements with its Affiliated Persons or Marriott covenants and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement on the part of the Issuer and each of its Subsidiary to be performed and observed and (2) promptly notify the Trustee of any notice to any of the Issuer or its Subsidiaries of any material default under the Management Agreement of which it is aware.
(b) The Issuer shall not, in Landlord's and shall cause its counsel's reasonable opinionSubsidiaries not to, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(dsurrender, terminate, cancel, or modify (other than non-material changes) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement. If Holders of a majority in principal amount of the reasonable opinion outstanding Notes consent to the appointment of Landlord a new Manager, or if an Acceptable Manager becomes the Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Issuer and its counselSubsidiaries will, does not cause or with respect to an Acceptable Manager, prior to commencement of its duties as the Rent Manager, execute a subordination of management agreement in substantially the form previously delivered by the Manager as of the Issue Date.
(c) Holders of a majority in principal amount of the outstanding Notes shall have the right to remove the Manager and replace such Manager with a Person to be so characterized selected by the Issuer and reasonably acceptable to Trustee (or, if an Event of Default has occurred and is then continuing, selected by the Trustee) and without payment of any termination fee, upon the earliest to occur of any one or more of the following events: (1) an Event of Default has occurred and is then continuing, (2) thirty (30) days after notice from Trustee to the Issuer if the Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Code. Landlord shall have no right to enforce Tenant's rights Management Agreement or (3) the Manager defaults under any such the Management Agreement, except with respect such default is reasonably likely to have a Material Adverse Effect, and such default remains unremedied for thirty (30) days following written notice to the termination thereof following termination of this AgreementManager.
Appears in 1 contract
Management Agreement. Except (a) The Issuer shall, and shall cause the Asset Entities as otherwise provided belowapplicable to, Tenant shall not enter into(i) perform and observe all of the material terms, amend, surrender or modify any covenants and conditions of the Management Agreement with a Person that on the part of each Asset Entity to be performed and observed, (ii) promptly notify the Indenture Trustee and the Servicer of any notice to any of the Asset Entities of any material default under the Management Agreement of which it is not an Affiliated Person as to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to timeaware, and (iii) prior to termination of the Manager in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement, to renew the Management Agreement shall not, prior to each expiration date thereunder in Landlord's and accordance with its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) terms. If any of the CodeAsset Entities shall default in the performance or observance of any material term, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms covenant or condition of the Management Agreement will have on the part of the Asset Entities to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Indenture or the other Transaction Documents, and without waiving or releasing the Asset Entities from any of their obligations hereunder or under the Management Agreement, the Issuer grants the Indenture Trustee or the Servicer on its behalf the right, upon prior written notice to the Asset Entities, to pay any sums and to perform any act as may be reasonably appropriate to cause such an effect, then Tenant will modify the terms material conditions of the Management Agreement so on the part of the Asset Entities to be performed or observed; provided, however, that neither the Indenture Trustee nor the Servicer will be under any obligation to pay such sums or perform such acts.
(b) The Issuer shall not permit the Asset Entities to surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of Rating Agency Confirmations from each of the reasonable opinion Rating Agencies and written consent of Landlord and its counselthe Servicer. If at any time the Servicer consents to the appointment of a new Manager, does not or if an Acceptable Manager shall become the Manager, such new Manager, or the Acceptable Manager, as the case may be, then the Issuer shall cause the Rent Asset Entities to, as a condition of the Servicer’s consent, or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the form delivered on the Initial Closing Date.
(c) The Servicer shall have the right to require that the Manager be so characterized replaced with a Person chosen by the Issuer (or, if an Event of Default has occurred and is then continuing, the Indenture Trustee) and reasonably acceptable to the Servicer, upon the earliest to occur of any one or more of the following events: (i) the declaration of an Event of Default, (ii) the DSCR falls to less than 1.10x as of the end of any calendar quarter and the Servicer reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of the Manager rather than factors affecting the Asset Entities’ industry generally, (iii) the Manager has engaged in fraud, gross negligence or willful misconduct in connection with its performance under the Code. Landlord shall have no right to enforce Tenant's rights Management Agreement or (iv) default on the part of the Manager in the performance of its obligations under any such the Management Agreement, except and, with respect to the termination events specified in clauses (iii) and (iv) such event could reasonably be expected to have a Material Adverse Effect and remains unremedied for 30 days after the Manager receives written notice thereof following termination from the Servicer (provided, however, if such default is reasonably susceptible of cure, but not within such 30-day period, then the Manager may be permitted up to an additional 60 days to cure such default provided that the Manager diligently and continuously pursues such cure). The Indenture Trustee and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or to, at its own expense (except to the extent that a particular expense is expressly provided herein to be an Advance or an Additional Issuer Expense) utilize other agents or attorneys), in performing certain of its obligations under this AgreementIndenture and the other Transaction Documents, including, without limitation, Tower Site management, operation, and maintenance; Tower Site dispositions, releases and substitutions; and confirmation of compliance by the Issuers with the provisions hereunder and under the other Transaction Documents and neither the Indenture Trustee nor the Servicer shall have any liability with respect thereto.
Appears in 1 contract
Sources: Indenture (American Tower Corp /Ma/)
Management Agreement. Except as otherwise provided belowThe Borrower will, Tenant or will cause Lessee to, duly perform in all material respects the obligations contemplated to be performed by Lessee under the Management Agreement and will, or will cause Lessee to, with due diligence and in a reasonable and prudent manner, enforce Lessee's rights under the Management Agreement and will not, and will not permit Lessee to, waive any of Lessee's rights or Manager's obligations under the Management Agreement without the prior written consent of Lender which may be withheld in Lender's sole discretion."
(u) By deleting the last sentence of Section 7.13 of the Loan Agreement, appearing on page 56 thereof, and inserting in lieu thereof the following new last sentence: "Additionally, Borrower shall not, and Borrower shall not enter intopermit Lessee to, amendincrease or decrease, surrender or modify agree to any increase or decrease in, the amount of the Reserve (as defined in the Management Agreement) or any other reserves maintained pursuant to the Management Agreement with a Person that is not an Affiliated Person as to Marriott or Crestline without Landlord's the prior written consentconsent of the Lender."
(v) By deleting from Section 8.2 of the Loan Agreement, appearing on page 60 thereof, the words "▇▇▇▇▇▇▇▇▇▇ County, Maryland" and inserting in lieu thereof the following: "Richmond, Virginia".
(w) By deleting Section 8.7(a) of the Loan Agreement, appearing on page 62 thereof, and inserting in lieu thereof the following new Section 8.7(a):
(a) Borrower shall not, and Borrower shall not permit Lessee to, terminate or enter into or consent to any amendment, modification, waiver or supplement of any provision of the Management Agreement without the prior written consent of the Lender, which consent may be given or withheld in LandlordLender's sole but reasonable discretion. Tenant may from time Borrower shall cause Lessee to time(i) fulfill and perform each and every term, covenant and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms provision of the Management Agreement shall notto be fulfilled or performed by Lessee thereunder, in Landlord's (ii) give prompt written notice to Lender of any written notice received by Lessee under the Management Agreement, together with a complete copy of any such notice, (iii) enforce, short of termination thereof, the performance and its counsel's reasonable opinionobservance of each and every term, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord covenant and its counsel reasonably conclude that the terms provision of the Management Agreement will have such an effectto be performed or observed by Manager, then Tenant will modify the terms of and (iv) not assign the Management Agreement so that or its rights and obligations thereunder, except pursuant to the Management Loan Documents."
(x) By inserting the phrase "nor Lessee" after the word "Partner" appearing in the first line of Section 8.12 of the Loan Agreement, appearing on page 64 thereof.
(y) By inserting the phrase "or Lessee" after the word "Partner" appearing in the reasonable opinion first line of Landlord and its counsel, does not cause Section 9.1(g) of the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Loan Agreement, except with respect to appearing on page 68 thereof.
(z) By deleting Section 9.1(o) of the termination Loan Agreement, appearing on page 70 thereof, and inserting in lieu thereof the following termination of this Agreement.new Section 9.1(o):
Appears in 1 contract
Sources: Loan Modification Agreement (Apple Hospitality Two Inc)
Management Agreement. Except as otherwise provided belowLessee agrees that in order to comply with certain of the REIT Requirements, Tenant it will, at all times, during the Term cause the Leased Property to be operated and managed by a management company ("Manager") that is an Eligible Independent Contractor. Lessee shall provide Lessor with an executed copy of all agreements relating to the management or operation of the Facility (a "Management Agreement"). Lessor shall have the right in its sole and absolute discretion to approve or disapprove in advance any Manager or proposed Manager of the Facility which is not enter into, amend, surrender or modify any a Qualified Manager. Any Management Agreement with a Person must provide that is not an Affiliated Person as (i) upon termination of this Lease or termination of Lessor's or Lessee's right to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and in accordance with and subject to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation possession of the Leased Property to Manager provided that for any such Management Agreement shall provide (a) that reason, the Management Agreement and all amounts may be terminated by Lessor without liability for any payment due from Tenant or to become due to the Manager other than the System fee, thereunder; (ii) any management fees shall be subordinate subordinated to payments of Rent to Lessor hereunder; and (iii) in the event Lessee is in default, the Manager shall, at the election of Lessor and provided the Manager continues to be paid, and Lessor (or any party acting by or through Lessor) agrees to perform Lessee's other obligations to Manager under the Management Agreement which accrue subsequent to the Lease and all amounts due from Tenant date the Lessor makes such election, continue to Landlord perform under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms of the Management Agreement for a period not to exceed ninety (90) days, provided that such election by Lessor shall not, not constitute a waiver by Lessor of any rights or remedies Lessor may have as a result of Lessee's default. No fees or other amounts payable by Lessee to any Manager shall excuse Lessee from its obligations to pay Rent and other amounts payable by Lessee to Lessor hereunder. No Management Agreement may be amended or modified in Landlord's and its counsel's reasonable opinion, cause any manner which materially affects the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) subordination of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that management fees without the terms prior written consent of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this AgreementLessor.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant (a) Borrower shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Property in accordance with the Management Agreement. Borrower shall (i) diligently perform and subject observe all of the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed and observed, (ii) promptly notify Lender of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed, and (iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, report and estimate received by it under the Management Agreement. If Borrower defaults in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting Lender’s other rights or remedies under this Agreement or the other Loan Documents, the Environmental Indemnity or the Guaranty, if any, and without waiving or releasing Borrower from any of its obligations hereunder or under the Management Agreement, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the material terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed.
(b) Borrower shall not surrender, terminate, cancel, modify, renew or extend the Management Agreement, or enter into any other agreement relating to the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective terms, Management Agreements with its Affiliated Persons management or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property with Manager or any other Person, or consent to the assignment by the Manager provided that any such Management Agreement shall provide (a) that of its interest under the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds in each case without the express consent of Lender (such consent not to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed so long as no Trigger Period is then in effect). If at any time Lender consents to the appointment of a new manager, such manager and provided further thatBorrower shall, except as a condition of Lender’s consent, execute an assignment and subordination of management agreement in respect the form reasonably required by Lender.
(c) Lender shall have the right, in its sole discretion, to require Borrower to replace the Manager upon prior notice with a Person reasonably approved by Lender upon the occurrence of any Management Agreement entered into pursuant to Section 14.3(c), one or more of the terms following events: (i) at any time following the occurrence and continuance of an Event of Default and/or (ii) if Manager is in default of any material provision under the Management Agreement shall notbeyond any applicable notice and cure period or if at any time the Manager has engaged in gross negligence, in Landlord's and its counsel's reasonable opinion, cause the Rent to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect to the termination thereof following termination of this Agreementfraud or willful misconduct.
Appears in 1 contract
Sources: Loan Agreement (New England Realty Associates Limited Partnership)
Management Agreement. Except as otherwise provided below(a) The Issuer shall, Tenant and shall not enter intocause the Asset Entities to, amend(i) perform and observe all of the material terms, surrender or modify any covenants and conditions of the Management Agreement with a Person that is not an Affiliated Person as on the part of each Asset Entity to Marriott or Crestline without Landlord's be performed and observed, (ii) promptly notify the Indenture Trustee, the Back-Up Manager and the Servicer of any notice to any of the Asset Entities of any material default under the Management Agreement of which it has Knowledge and (iii) prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and termination of the Manager in accordance with and subject to the Owner terms of the Management Agreement, without Landlord's consent, enter into, and/or terminate, renew the Management Agreement prior to each expiration date thereunder in accordance with their respective its terms. If any Asset Entity shall default in the performance or observance of any material term, Management Agreements with its Affiliated Persons covenant or Marriott and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation condition of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement on the part of such Asset Entity to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Base Indenture or the other Transaction Documents, and all amounts due without waiving or releasing such Asset Entity from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord any of its obligations hereunder or under the LeaseManagement Agreement, the Issuer grants the Indenture Trustee or the Servicer on its behalf the right, upon prior written notice to such Asset Entity, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement on the part of such Asset Entity to be performed or observed; provided that neither the Indenture Trustee nor the Servicer will be under any obligation to pay such sums or perform such acts.
(b) for The Issuer shall not permit the termination thereof upon Asset Entities to surrender, terminate, cancel, or modify (other than non-material changes), the termination of this Management Agreement, or enter into any other management agreement with any new manager, or consent to the assignment by the Manager of its interest under the Management Agreement, in each case, without delivery of a Rating Agency Confirmation and written consent of the Servicer (acting at the direction of the Controlling Class Representative or, if there is no Controlling Class Representative, the Majority Controlling Class Holders); provided, that no other consent of any Noteholder shall be required; provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent Rating Agency Confirmation shall not be unreasonably withheldrequired in connection with the appointment of a Successor Manager if the Successor Manager is a Non-Securitization Entity.
(c) The Indenture Trustee, conditioned the Back-Up Manager, the Verification Agent and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(cutilize other agents or attorneys), at the terms cost of the Management Agreement shall notManager or the Issuer, as an Additional Securitization Expense, in Landlord's performing certain of its obligations under this Base Indenture and its counsel's reasonable opinionthe other Transaction Documents, cause including Fiber Network management, operation, and maintenance; Fiber Network Asset dispositions and releases; and confirmation of compliance by the Rent to fail to qualify as "rents from real property" within Obligors with the meaning of Section 856(d) of the Code, it being agreed by Tenant that if Landlord provisions hereunder and its counsel reasonably conclude that the terms of the Management Agreement will have such an effect, then Tenant will modify the terms of the Management Agreement so that the Management Agreement, in the reasonable opinion of Landlord and its counsel, does not cause the Rent to be so characterized under the Code. Landlord other Transaction Documents and neither the Indenture Trustee, the Verification Agent, the Back-Up Manager or the Servicer shall have no right to enforce Tenant's rights under any such Management Agreement, except liability with respect to the termination thereof following termination of this Agreementthereto.
Appears in 1 contract
Management Agreement. Except as otherwise provided below, Tenant (A) The Borrowers shall not enter into, amend, surrender or modify any Management Agreement with a Person that is not an Affiliated Person as cause Manager to Marriott or Crestline without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole but reasonable discretion. Tenant may from time to time, and manage the Properties in accordance with the Management Agreement. The Borrowers shall (i) perform and subject to observe all of the Owner Agreement, without Landlord's consent, enter into, and/or terminate, in accordance with their respective material terms, Management Agreements with its Affiliated Persons or Marriott covenants and also with other Persons pursuant to Sections 4.1.1(b), 14.3(c) and 0 delegating operational authority for the day-to-day operation of the Leased Property to Manager provided that any such Management Agreement shall provide (a) that the Management Agreement and all amounts due from Tenant to the Manager other than the System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Lease, and (b) for the termination thereof upon the termination of this Agreement, and provided, further, that Landlord shall, if it succeeds to Tenant's rights under any management agreement, and each management agreement shall so provide, be bound only by the last management agreement or amendment thereto to which it consented, which consent shall not be unreasonably withheld, conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to Section 14.3(c), the terms conditions of the Management Agreement shall noton the part of each Borrower to be performed and observed, in Landlord's and its counsel's reasonable opinion, cause the Rent (ii) promptly notify Lender of any notice to fail to qualify as "rents from real property" within the meaning of Section 856(d) any of the CodeBorrowers of any material default under the Management Agreement of which it is aware, it being agreed by Tenant that if Landlord and (iii) prior to termination of the Manager in accordance with Section 5.11(C) hereof, Borrower shall renew the Management Agreement prior to each expiration date thereunder in accordance with its counsel reasonably conclude that terms. If any of the terms Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement will on the part of the Borrowers to be performed or observed, then, without limiting Lender's other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing the Borrowers from any of their obligations hereunder or under the Management Agreement, Lender shall have the right, upon prior written notice to the Borrowers, but shall be under no obligation, to pay any sums and to perform any act as may be reasonably appropriate to cause such an effect, then Tenant will modify the terms material conditions of the Management Agreement so that on the part of the Borrowers to be performed or observed.
(B) The Borrowers shall not surrender, terminate, cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of Rating Confirmations from each of the reasonable opinion Rating Agencies and written consent of Landlord the Lender. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall become the Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Borrowers shall, as a condition of Lender's consent, or with respect to an Acceptable Manager, prior to commencement of its counselduties as Manager, does not cause execute a subordination of management agreement in substantially the Rent form delivered in connection with the closing of the Loan.
(C) Lender shall have the right to require that the Manager be so characterized replaced with a Person chosen by the Borrowers (or, if an Event of Default has occurred and is then continuing, Lender) and reasonably acceptable to Lender, upon the earliest to occur of any one or more of the following events: (i) an Event of Default has occurred and is then continuing, (ii) thirty (30) days after notice from Lender to the Borrowers if Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Code. Landlord shall have no right to enforce Tenant's rights under any such Management Agreement, except with respect (iii) thirty (30) days after notice from Lender to the termination thereof Borrowers if the DSCR is less than 1.05:1 and Lender reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of the Manager rather than factors affecting the Borrowers' industry generally, or (iv) Manager defaults under the Management Agreement, such default is reasonably likely to have a Material Adverse Effect, and such default remains unremedied for thirty (30) days following termination of this Agreementwritten notice to Manager.
Appears in 1 contract