Management Agreement. (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 (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 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 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 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 3 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Management Agreement. (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 AgreementBorrower shall maintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Borrower’s obligations thereunder and enforce performance in all material respects of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall cause the Manager to enter into an assignment and subordination of the management agreement in form satisfactory to Lender (the “Subordination of Management Agreement”). The Subordination of Management Agreement shall assign and subordinate the Manager’s interests in the Property and all fees and other rights of the Manager pursuant to the Management Agreement to the rights of Lender. Upon an Event of Default, Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by at Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender ’s request made at any time within one (1) year while such Event of Default continues, terminate, or cause the termination of, the Management Agreement. After the date hereof, Borrower shall not enter into any agreement relating to the management of the last day upon Property with any party without the express written consent of Lender (which any consent shall not be unreasonably withheld to the extent that 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 manager is an affiliate of Borrower); provided, which power however, with respect to a new manager of attorney shall the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph conditioned upon Borrower delivering (i) shall bear interest at a Rating Comfort Letter (if required pursuant to a Pooling and Servicing Agreement from and after the Default Rate from occurrence of a Securitization) with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the date such cost is incurred to the date sense of payment to Lender, clause (ii) shall be deemed to constitute a portion of the Debt, (iiidefined term “Control”) shall be secured by the lien of the Security Instruments and the other Loan Documents REIT), and (ivii) evidence satisfactory to Lender (which shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoinginclude, Borrower, upon at the request of Lender, shall terminate a legal non-consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Borrower, without penalty its shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor 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 any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
Appears in 3 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Management Agreement. (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 AgreementBorrower shall maintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Borrower's obligations thereunder and enforce performance in all material respects of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall cause the Manager to enter into an assignment and subordination of the management agreement in form satisfactory to Lender (the "Subordination of Management Agreement"). The Subordination of Management Agreement shall assign and subordinate the Manager's interests in the Property and all fees and other rights of the Manager pursuant to the Management Agreement to the rights of Lender. Upon an Event of Default, Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by at Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender 's request made at any time within one (1) year while such Event of Default continues, terminate, or cause the termination of, the Management Agreement. After the date hereof, Borrower shall not enter into any agreement relating to the management of the last day upon Property with any party without the express written consent of Lender (which any consent shall not be unreasonably withheld to the extent that 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 manager is an affiliate of Borrower); provided, which power however, with respect to a new manager of attorney shall the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph conditioned upon Borrower delivering (i) shall bear interest at a Rating Comfort Letter with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the Default Rate from the date such cost is incurred to the date sense of payment to Lender, clause (ii) shall be deemed to constitute a portion of the Debt, (iiidefined term "Control") shall be secured by the lien of the Security Instruments and the other Loan Documents REIT), and (ivii) evidence satisfactory to Lender (which shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoinginclude, Borrower, upon at the request of Lender, shall terminate a legal non-consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Borrower, without penalty its shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor 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 any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
Appears in 3 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Management Agreement. (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) Borrower 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 perform, observe and observe enforce all of the terms, covenants and conditions of the Management Agreement, Agreement on the part of Borrower to be performed performed, observed and observed 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 (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. Without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager of its interest under the Management Agreement, or terminate or cancel the Management Agreement, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any 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, Agreement or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, Agreement in any respect, and any such surrender of the Management Agreement, Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement, 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 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 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 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 notify Lender if Manager to, sub-contract contracts to a third party or an affiliate any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheldAgreement. Borrower shall, from time to time, use its best efforts to obtain from Manager under the Manager 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments 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 if the Management Agreement and replace Manager, without penalty or fee, if at any time during is terminated pursuant to the Loan:
(a) Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event Assignment of Default, (c) there exists a default by Manager under the Management Agreement that continues beyond or for any other reason, then Lender, at its option, may require Borrower to engage, in accordance with the expiration terms and conditions set forth in the Assignment of any applicable notice and cure periods. At such time as the Manager may be removedManagement Agreement, a Qualifying Manager shall assume management of new manager (the “New Manager”) to manage the applicable Individual Property Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Borrower pursuant to a Replacement written management agreement that complies with the terms hereof and of the Assignment of Management AgreementAgreement 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. To the extent that such New Manager is an Affiliated Manager, Borrower’s engagement of such 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 3 contracts
Samples: 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. (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. Pledgor shall cause Mortgage Borrower shall, 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 true copy of each such notice. Pledgor shall cause Mortgage Borrower shall to not surrender the Management Agreement, consent to the assignment by the 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 writingwriting without the Lender’s prior written consent, which consent shall not be unreasonably, withheld, conditioned or delayed. Borrower hereby assigns In the event that the Management Agreement expires or is terminated (without limiting any obligation of Pledgor to Lender as further security for the payment obtain Lender’s consent to any termination or modification of the Debt Management Agreement in accordance with the terms and for the performance and observance of the terms, covenants and conditions provisions of this Agreement), all the rights, privileges and prerogatives of Pledgor shall cause Mortgage Borrower to surrender promptly enter into a Replacement Management Agreement with Manager or another Qualified Manager, as applicable. Subject to the Management Agreementrights of Mortgage Lender, 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 void and of no force and effect. If 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 provisions of this Agreement, and without waiving or releasing Borrower Pledgor from any of its obligations hereunder, Pledgor shall permit 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 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, however, that Lender shall have no such obligation to perform any such action. Pledgor shall cause Lender and any Person designated by Lender shall have, and are hereby granted, 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, 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. Pledgor shall cause Mortgage Borrower shall to not, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower Pledgor shall, from time to time, use commercially reasonable efforts to obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments 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, BorrowerPledgor, upon the request of Lender, shall cause Mortgage Borrower to terminate the Management Agreement 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 a material uncured default (after the expiration of all applicable notice and cure periods) by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periodsAgreement. At such time as the Manager may be removed, a Qualifying Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 3 contracts
Samples: 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. (a) The Improvements on As of the Properties Closing Date, there are operated and managed as “U-Store-It” self-service storage facilities (no property management agreements 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 heretob) Borrower 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 promptly perform, observe and enforce all of the terms, covenants and conditions of the Management Agreement, Agreement on the part of Borrower to be performed performed, observed and observed 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 Agreement, (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 under the Management Agreement on beyond applicable notice and cure periods thereunder; (iii) promptly deliver to Lender a copy of any written notice of default or other material notice received by Borrower under the part Management Agreement; (iv) promptly give notice to Lender of any written notice that Borrower receives which provides that Manager is 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 of the covenants required 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 of its interest under the Management Agreement.
(c) Borrower shall not, without the prior written consent of Lender (which shall not be unreasonably withheld, conditioned or delayed), (i) surrender, terminate or cancel the Management Agreement, consent to any assignment of Manager’s interest under the related Management Agreement or otherwise replace Manager or renew or extend the 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, that Borrower may replace Manager and/or consent to the assignment of Manager’s interest under 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 Management Agreement; (iii) increase or consent to the increase of the amount of any charges under Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend the Management Agreementamend, in any material respect, either orally or in writing. Borrower hereby assigns to Lender as further security for the payment waive or release any of the Debt its material rights and for the performance and observance of the termsremedies under, 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, 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, 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 Lender’s approval shall be void and of no force and effect. deemed given with respect to the 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 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 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 applicable Individual Property Property, subject to the rights of tenants, 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, subject to the rights of tenants. Borrower shall not, and shall not permit the notify Lender if Manager to, sub-contract 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 a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. ’s reasonable consent).
(e) Borrower shall, from time to time, use commercially reasonable efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be reasonably requested by Lender. Borrower shall exercise each individual option, if any, .
(f) In the event that the Management Agreement is scheduled to extend or renew expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than thirty (30) days prior to such 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 Manager’s rights under the Management Agreement, 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 a Qualified Management Agreement.
(h) Without limitation of the foregoing, if the Management Agreement upon demand 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 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 engage, in accordance with the terms and conditions set forth herein and in the Assignment of Management Agreement, 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 made at 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 time within one engagement of a New Manager hereunder, (1i) year New Manager and Borrower shall execute an Assignment of the last day upon which any Management Agreement (with such option changes thereto as may be exercisedrequired by the Rating Agencies), and (ii) to the extent that such New Manager is an Affiliated Manager, Borrower hereby expressly authorizes shall deliver to Lender a New Non-Consolidation Opinion with respect to such New Manager and appoints new management agreement.
(j) Borrower shall notify Lender its attorney-in-fact in writing, within ten (10) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or similar payment or other termination fee or similar payment paid by any Manager.
(k) In the event that an Event of Default has occurred and is continuing, then Lender shall have the right to exercise any such option in the name of and upon behalf require Borrower to appoint a Qualified Manager, which is not an Affiliate of Borrower, which power to manage all the Property pursuant to a Qualified Management Agreement in accordance with the terms and conditions of attorney this Agreement.
(l) Lender’s consent (not to be unreasonably withheld, conditioned or delayed) shall be irrevocable and shall required with respect to any Sale or Pledge of any Affiliated Manager over which Borrower, any SPE Component Entity and/or their respective Affiliates has Control, which consent may be deemed conditioned upon receipt of a New Non-Consolidation Opinion to be coupled with the extent such Sale or Pledge is to an interest. Affiliate of Borrower, any SPE Component Entity and/or Guarantor.
(m) 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) Section 4.15 shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Security Instruments Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefortherefor (and to the extent not paid within ten (10) Business Days of demand therefor by Lender shall bear interest at the Default Rate).
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.), Loan Agreement (American Realty Capital New York City REIT, Inc.)
Management Agreement. (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) Borrower shall at all times continue cause Mortgage Borrower 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) in a commercially reasonable manner diligently perform and promptly perform, observe and enforce all of the terms, covenants and conditions of the each Management Agreement, Agreement on the part of Mortgage Borrower to be performed performed, observed and observed enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower under the each Management Agreement and Agreement, (ii) promptly notify Lender of the giving 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 Manager Mortgage Borrower under any Management Agreement; (iv) promptly give notice to Borrower Lender of any default by 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 or and observance of any all of the terms, covenants or conditions of the Management Agreement on the part of Borrower required to be performed and observed and deliver to Lender a true copy of by Manager under each such notice. Management Agreement.
(b) Borrower shall not surrender and shall not permit Mortgage Borrower to, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed), (i) surrender, terminate or cancel any Management Agreement, consent to the any assignment by the Manager of its 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 conditions hereof and of the other Loan Documents or terminate (2) if no Event of Default has occurred and is continuing and the Individual Property for which such Management Agreement has been terminated, cancelled and surrendered is a Permitted Self-Management Property, upon such termination, cancellation or cancel the 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, supplement, alter or amend the Management Agreementamend, in any material respect, either orally or in writing. Borrower hereby assigns to Lender as further security for the payment waive or release any of the Debt its material rights and for the performance and observance of the termsremedies under, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the a Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, Agreement in any material 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. .
(c) If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of the 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 may be appropriate to cause all the terms, covenants and conditions of the 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 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 (subject to the rights of Tenants and to the extent permitted by Legal Requirements and Health Care Requirements) to enter upon the applicable related 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 of default under the 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. Borrower shall not, and shall not permit the Manager to, 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 a thirduse commercially reasonable efforts to cause Manager to cause any sub-party without contracts of its management responsibilities to be entered into in accordance with the prior written consent terms and conditions of Lender, which consent the Assignment of Management Agreement.
(d) Borrower shall not be unreasonably withheld. or shall cause Mortgage Borrower shallto, from time to time, use commercially reasonable efforts to obtain from the Manager under each Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of the each Management Agreement as may be requested by Lender. .
(e) Borrower shall exercise have the right to cause Mortgage Borrower to replace Manager or consent to the assignment of Manager’s rights under any Management Agreement, in each individual optioncase, 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, (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 anyany Management Agreement is terminated or expires (including, without limitation, pursuant to extend the Assignment of Management Agreement), comes up for renewal or renew extension (exclusive of, in each case, any automatic renewal or extension in accordance with its terms) but is not renewed or extended, 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 Borrower shall either (A) cause Mortgage Borrower to engage, in accordance with the term terms and conditions set forth herein, a New Manager to manage the related Individual Property, which such New Manager shall (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 upon demand by Lender made at or (B) if no Event of Default has occurred and is continuing and the Individual Property related to such Management Agreement which was terminated or expired is a Permitted Self-Management Property, 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 time within one engagement of a New Manager hereunder, (1i) year New Manager, Borrower and Mortgage Borrower shall execute a Subordination of the last day upon which any Management Agreement (with such option changes thereto as may be exercisedrequired 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 fee or similar payment or other termination fee or similar payment paid by any Manager, and Borrower hereby expressly authorizes further covenants and appoints Lender its attorney-in-fact agrees that Borrower shall cause Mortgage Borrower to exercise cause any such option in termination fee or payment to be promptly deposited into the name Cash Management Account.
(i) In the event that an Event of Default has occurred and upon behalf 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, which power 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 attorney 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 irrevocable and shall required with respect to any Sale or Pledge of any Affiliated Manager, which consent may be deemed to be coupled with an interest. conditioned upon receipt of a New Non-Consolidation Opinion.
(k) Any sums expended by Lender pursuant to this paragraph (i) Section 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 Security Instruments Pledge 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 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Management Agreement. (a) The Improvements on Notwithstanding anything to the Properties are operated contrary contained herein or in any other Loan Document, (i) until the occurrence of a Manager Trigger, any covenants and managed 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 “U-Store-It” self-service storage facilities applicable) shall, in each case, be deemed to apply only as and to the extent applicable (other than the Properties set forth on Schedule 4.1.31 attached hereto) under 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 Management AgreementProperty in accordance with the applicable terms and conditions hereof, 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 directly undertake and perform the management fees under duties of a property manager at the Management Agreement exceed three percent (3%) of the gross income derived from Property and otherwise comply with the applicable Individual covenants contained herein and in the other Loan Documents related thereto (the foregoing, 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 be (A) selected by Borrower shall, 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 perform and promptly perform, observe and enforce all of the terms, covenants and conditions of the Management Agreement, Agreement on the part of Borrower to be performed performed, observed and observed 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 Agreement, (ii) promptly notify Lender of any default under the giving Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Manager Borrower under the Management Agreement; (iv) promptly give notice to Borrower Lender of any default by notice or information that Borrower in the performance or observance of any of the terms, covenants or conditions of receives which indicates that Manager is terminating the Management Agreement on or that Manager is otherwise discontinuing its management of the part Property; and (v) promptly enforce the performance and observance of Borrower all of the covenants required 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 of its interest under the Management Agreement.
(c) Borrower shall not, or 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 modifyotherwise replace Manager or renew or extend any Management Agreement (exclusive of, changein each case, supplementany 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, alter or amend however, that Borrower may replace Manager and/or consent to the assignment of Manager’s interest under the Management Agreement, in any respecteach case, either orally or in writing. Borrower hereby assigns to Lender as further security for accordance with the payment applicable terms and conditions hereof and of the Debt and for other Loan Documents; (ii) reduce or consent to the performance and observance reduction of the terms, covenants and conditions term of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, ; (iii) increase or consent to terminate, cancel, the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend the Management Agreementamend, in any material respect, or waive or release any of its material rights and any such surrender of remedies under, 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. 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 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 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 notify Lender if Manager to, sub-contract contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Agreement.
(e) Borrower shall, from time to time, use its best efforts to obtain from Manager under the Manager 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 exercise each individual option, if any, to extend or renew the term of the 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 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.
(f) In the event that the Management Agreement 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 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. 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 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 engage, in accordance with the terms and conditions set forth herein and in the Assignment of Management Agreement, 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 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 paragraph (i) Section 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 Security Instruments 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 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Management Agreement. (a) The Properties are currently self-managed by Mortgage Borrower. In the event that the Improvements on the Properties each Individual Property 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 a Management Agreement, which have been approved by Lender including the provisions of this Section 5.1.18 shall apply. Borrower shall not permit 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, each in form and substance, 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 any other items set forth therein. The Properties (other than quality pursuant to arm’s-length management agreements, taking into account differences in the Properties set forth on Schedule 4.1.31 attached hereto) quality or 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 at all times continue be deemed to be operated as “Umarket and arm’s-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 Propertylength. Borrower shall, shall cause Mortgage Borrower to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, 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 Agreement Agreements 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 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 the any Management Agreement, consent to the assignment by the Manager of its interest under the any Management Agreement, or terminate or cancel the any Management Agreement, or modify, change, supplement, alter or amend the Management AgreementAgreement or, 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, cancelrespect that would have a Material Adverse Effect, modify, change, supplement, alter or amend the 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 respectManagement 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 replacement Management Agreement for such Individual Property. Subject to the rights of Mortgage Lender pursuant to the terms and any such surrender conditions of the Management AgreementMortgage Loan Documents, 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 if Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of the 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 may be appropriate to cause all the terms, covenants and conditions of the 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 such Management Agreement shall be kept unimpaired and free from default. Lender and any Person person designated by Lender shall have, and are hereby granted, the right to enter upon the applicable 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 the such 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 notify Lender if the Manager to, sub-contract contracts to a third party any or all of its management responsibilities under the any Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheldAgreement. 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 the 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 the 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, 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 this paragraph (iSection 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 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 Security Instruments Pledge Agreement and the other Loan Documents and (iv) shall be immediately 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 the any Management Agreement and replace Managerthe 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:
: (ai) 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 any bankruptcy or insolvency proceeding, or (biv) there exists an Event of Default, (c) there exists a default by Manager under the Management Agreement that continues beyond Maturity Date occurs and the expiration of any applicable notice and cure periodsLoan is not paid in full. At such time as the Manager may be removedis removed as the Manager with respect to any Individual Property, a Qualifying Qualified Manager shall assume management of the applicable such Individual Property pursuant to a Replacement 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 approval of Lender, such approval not to be unreasonably withheld, delayed or conditioned.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Management Agreement. (a) The Improvements on Issuer shall, and shall cause 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 shallAsset Entities to, (i) 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 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 each Asset Entity to be performed and observed and deliver (ii) promptly notify the Indenture Trustee, the Back-Up Manager and the Servicer of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Asset Entities of its interest any material default 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. Borrower hereby assigns to Lender as further security for the payment Agreement 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 void and of no force and effectwhich it has Knowledge. If Borrower 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 Borrower such Asset Entity to be performed or observed, then, without limiting the generality of Indenture Trustee’s other rights or remedies under this Base Indenture or the other provisions of this AgreementTransaction Documents, and without waiving or releasing Borrower such Asset Entity from any of its obligations hereunderhereunder or under the Management Agreement, Lender shall have the Issuer grants the Indenture Trustee or the Servicer on its behalf the right, but shall be under no obligationupon prior written notice to such Asset Entity, to pay any sums and to perform any act or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower such Asset Entity to be performed or observed observed; provided that neither the Indenture Trustee nor the Servicer will be under any obligation to be promptly performed pay such sums or observed on behalf of Borrowerperform 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, or consent 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 assignment 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 the Manager shall deliver to Lender a copy of any notice sent to Borrower of default its interest 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, each case without delivery of a Rating Agency Confirmation and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lenderthe Servicer (acting at the direction of the Controlling Class Representative or, which 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 Rating Agency Confirmation shall not be unreasonably withheld. Borrower shallrequired in connection with the appointment of a Successor Manager if the Successor Manager is a Non-Securitization Entity.
(c) The Indenture Trustee, from time the Back-Up Manager and the Servicer are each permitted to time, obtain from utilize and in good faith rely upon the advice of the Manager such certificates of estoppel with respect (or to compliance by Borrower with utilize other agents or attorneys), at the terms cost of the Management Agreement Manager or the Issuer, as may be requested by Lender. Borrower shall exercise each individual optionan Additional Securitization Expense, if any, to extend or renew the term of the 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 Borrower hereby expressly authorizes and appoints Lender in performing 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 obligations under 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 Security Instruments Base Indenture and the other Loan 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 Issuer with the provisions hereunder and under the other Transaction Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation none of the foregoingIndenture Trustee, Borrower, upon the request of Lender, Back-Up Manager or the Servicer shall terminate the Management Agreement and replace Manager, without penalty or fee, if at have 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementliability with respect thereto.
Appears in 2 contracts
Samples: Supplemental Indenture (Frontier Communications Parent, Inc.), Base Indenture (Frontier Communications Parent, Inc.)
Management Agreement. (aA) The Improvements on Borrowers shall cause Manager to manage 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 in accordance with 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) Borrowers 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 material 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 (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 each Borrower to be performed and observed and deliver observed, (ii) promptly notify Lender of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Borrowers of its interest any material default under the Management AgreementAgreement of which it is aware, or terminate or cancel and (iii) prior to termination of the Manager in accordance with Section 5.11(C) hereof, Borrower shall renew the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, Agreement prior to each expiration date thereunder in accordance with its terms. If 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 void and of no force and effect. If Borrower Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower the Borrowers to be performed or observed, then, without limiting the generality of Lender's other rights or remedies under this Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower the Borrowers from any of its their obligations hereunderhereunder 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 or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower the Borrowers to be performed or observed to be promptly performed observed.
(B) The Borrowers shall not surrender, terminate, cancel, or observed on behalf of Borrowermodify (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 end that assignment by the rights Manager of Borrower in, to and its interest under the Management Agreement Agreement, in each case without delivery of Rating Confirmations from each of the Rating Agencies and written consent of the Lender. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall be kept unimpaired become the Manager, such new Manager, or the Acceptable Manager, as the case may be, and free from default. Lender and any Person designated by 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 form delivered in connection with the closing of the Loan.
(C) Lender shall have, and are hereby granted, have the right to enter 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 applicable Individual Property at earliest to occur of any time 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 time Lender to time for the purpose 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 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 taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default rather than factors affecting the Borrowers' industry generally, or (iv) Manager defaults under the Management Agreement, such notice shall constitute full protection default is reasonably likely to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall nothave a Material Adverse Effect, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement such default remains unremedied for thirty (30) days following written notice to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforManager.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (Global Signal Inc), Loan and Security Agreement (Global Signal Inc)
Management Agreement. Lessor shall have the right in its sole and absolute discretion to approve or disapprove in advance any manager or proposed manager (aa "Manager") The Improvements on of the Properties are operated Facility which is not an Affiliate of Lessee, as well as any agreement relating to the management or operation of the Facility (a "Management Agreement") by a Manager which is not an Affiliate of Lessee and managed as “U-Store-It” self-service storage facilities Lessee will provide Lessor with an executed copy of any Management Agreement so approved by Lessor. Any Management Agreement (other than whether with a Manager which is an Affiliate or is not an Affiliate of Lessee) must provide that (i) upon termination of this Lease or termination of Lessor's or Lessee's right to possession of the Properties set forth on Schedule 4.1.31 attached heretoLeased Property for any reason, the Management Agreement may be terminated by Lessor without liability for any payment due or to become due to the Manager thereunder; (ii) any management fees shall be 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, continue to perform 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 (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 for a period not to exceed ninety (90) days. 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 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 of its interest under the Management Agreement, amended or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, modified in any respect, either orally or in writing. Borrower hereby assigns to Lender as further security for manner which materially affects the payment subordination 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 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 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 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 responsibilities under the Management Agreement to a third-party fees without the prior written consent of LenderLessor.
17. Article XXII is hereby amended by adding the following paragraphs thereto: Add immediately following the first paragraph: Without limiting the generality of the foregoing paragraph, 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 Franchise Agreement pursuant to which consent shall the Leased Property is currently operated) ("Current Franchise Agreement") from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, but not be unreasonably withheld. Borrower shalllimited to, from time to time, obtain from the Manager such certificates of estoppel transfer fees and termination fees) imposed upon or incurred by or asserted against Lessor Indemnified Parties under or with respect to compliance the Current Franchise Agreement which arises as a result of (a) any default by Borrower with Lessee under the terms of this Lease; or (b) any default by Lessee under the Management 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 requested approved by Lender. Borrower shall exercise each individual option, if any, to extend or renew Lessor" on the term third through fifth line of the Management Agreement upon demand by Lender made at any time within one subsection (1b) year of the last day upon which any such option may be exercised, thereof 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 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, deleting subsection (iiid) 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 thereforthereof.
(b) Without limitation of the foregoing20. Article XXXII is hereby amended by inserting "1010 Wisconsin Avenue, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.N.W.,
Appears in 2 contracts
Samples: Lease (Winston Hotels Inc), Lease (Winston Hotels Inc)
Management Agreement. (a) The Improvements on Tenant shall not, without Landlord's prior written consent, amend or modify 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 provisions of the Management Agreement which provide (i) that all amounts due from Tenant to the Manager shall be subordinate to 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 Management Agreement), which have been approved by Lender including (ii) for operation of the management fees 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 (iv) for termination thereof, at Landlord's option, upon the termination of this Agreement. Tenant shall not take 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 action, grant any consent or under such other tradename or trademark as may be approved by Lender. In no event shall the management fees permit any action under the Management Agreement exceed three percent (3%) of the gross income derived from the applicable Individual Property. Borrower shallwhich might have a material adverse effect on Landlord, (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 (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 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of LenderLandlord; provided, which however, that Landlord's consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from required in connection with any assignment of the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of Manager's rights under the Management Agreement to (x) any Affiliated Person of the Manager having the full power, right and authority to provide all services and organizational expertise as may be requested contemplated and required by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at or (y) any time within one (1) year Person who acquires all or substantially all of the last day upon which any management contracts of the Manager, provided that, in either such option may be exercisedcase, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact the Leased Property will retain the right to exercise any such option in use the name "Summerfield" name. In the event 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 assignment pursuant to this paragraph clause (y) preceding, provided that the successor Manager (i) shall bear interest at assumes, in writing all obligations of the Default Rate from Manager under the date such cost is incurred to Management Agreement, and (ii) has a Tangible Net Worth, as of the date of payment assignment, equal to Lenderthe greater of the Tangible Net Worth of the Manager as of the date of this Agreement, (ii) and the Tangible Net Worth of the Manager as of the date of such assignment, the Manager shall be deemed released from all liabilities arising under the Management Agreement from and after the effective date of such assignment. Tenant shall not agree to constitute a portion of any change in the DebtManager (except as provided in the preceding sentences), to any change in the Management Agreement (iii) shall be secured by except as provided in 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 foregoingpreceding sentences), Borrower, upon the request of Lender, shall terminate the Management Agreement and replace Manageror 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, without penalty or feehowever, if at any time during that the Loan:
(a) Manager shall become insolvent or may grant a debtor security interest in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default by Manager its right to receive payments under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementwithout Landlord's prior written approval.
Appears in 2 contracts
Samples: Lease Agreement (Hospitality Properties Trust), Master Lease Agreement (Hospitality Properties Trust)
Management Agreement. (a) The Improvements on the Properties continued)
4.3 any such telephone instructions 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 (ii) promptly notify Lender of the giving of any notice by Manager to Borrower of any default by Borrower confirmed 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 writing by the Manager of its interest under Client or his authorized representative; then the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, Client agrees in any respect, either orally or order to induce Form-A-Co to act 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 reliance on 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 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 applicable Individual Property at any time and instructions from time to time and at all times to keep Form-A-Co indemnified from and against all actions, proceedings, claims and demands which may be brought or made against Form-A-Co and all losses, costs, charges, damages and expenses which Form-A-Co may incur or sustain or for the purpose which it may become liable by reason of taking its having acted on such instructions and notwithstanding that any such actioninstructions may not have been duly authorized by the Client. If The Client further agrees to reimburse Form-A-Co on a full indemnity basis for legal fees and all other collection costs and expenses incurred in the Manager shall deliver enforcement of this indemnity. Without prejudice to Lender a copy the 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 notice sent kind arising from any fraud or wilful misconduct of Form-A-Co or its directors or staff.
6.) The Client undertakes to Borrower immediately notify Form-A-Co of default under any material changes in the Management Agreementcompany’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 competent authority, or of any legal proceedings or actions commenced against him or any Company or Trust acquired by him. In such notice shall constitute full protection circumstances whereby notification is received by Form-A-Co from the Client or other third party Form-A-Co reserves the right to Lender for temporarily suspend the services provided pending clarification or the outcome of any action taken such investigations, actions or omitted claims, or to be taken by Lender in good faith, in reliance thereon. Borrower shall not, and shall not permit the Manager to, sub-contract cease to provide any or all of its management responsibilities services and to terminate this Agreement provided that written notice of the same shall be issued to the Client. The Client hereby agrees and 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 by Form-A-Co under the Management Agreement circumstances stated above.
8.) The Client will discharge all fees and disbursements due to a thirdForm-party without the prior written consent of Lender, which consent A-Co when requested to do so and if any such fees or disbursements due to Form-A-Co shall not be unreasonably withheld. Borrower shallduly 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, from time or Form-A-Co, or both (as the case may require) shall have the right to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management terminate this Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within one (1) year by giving 30 days’ notice in writing to the other party. Termination of this Agreement shall not prejudice any rights of the last day upon which parties hereto in respect of any liability or obligation arising under this Agreement prior to such option may be exercised, termination.
10.) This Agreement is governed by the Laws of Gibraltar and Borrower the Client 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 this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred irrevocably submits to the date of payment to Lender, (ii) shall be deemed to constitute a portion non-exclusive jurisdiction of the Debt, (iii) shall be secured by the lien Courts of the Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforGibraltar in relation to any dispute or matter arising out of or in connection therewith.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Incorporating Management Agreement, Incorporating Management Agreement
Management Agreement. (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 four percent (34%) 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 (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 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 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 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Management Agreement. (a) The Properties are currently self-managed by Mortgage Borrower. In the event that the Improvements on the Properties each Individual Property 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 a Management Agreement, which have been approved by Lender including the provisions of this Section 5.1.18 shall apply. Borrower shall not permit 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, each in form and substance, 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 any other items set forth therein. The Properties (other than quality pursuant to arm’s-length management agreements, taking into account differences in the Properties set forth on Schedule 4.1.31 attached hereto) quality or 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 at all times continue be deemed to be operated as “Umarket and arm’s-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 Propertylength. Borrower shall, shall cause Mortgage Borrower to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, 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 Agreement Agreements 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 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 the any Management Agreement, consent to the assignment by the Manager of its interest under the any Management Agreement, or terminate or cancel the any Management Agreement, or modify, change, supplement, alter or amend the Management AgreementAgreement or, 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, cancelrespect that would have a Material Adverse Effect, modify, change, supplement, alter or amend the 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 respectManagement 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 replacement Management Agreement for such Individual Property. Subject to (x) the rights of Mortgage Lender pursuant to the terms and any such surrender conditions of the Management Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment Mortgage Loan Documents and (y) the rights of Mezzanine A Lender pursuant to the terms and conditions of the Management AgreementMezzanine A Loan Documents, without the prior consent of Lender shall be void and of no force and effect. If if Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of the 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 may be appropriate to cause all the terms, covenants and conditions of the 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 such Management Agreement shall be kept unimpaired and free from default. Lender and any Person person designated by Lender shall have, and are hereby granted, the right to enter upon the applicable 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 the such 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 notify Lender if the Manager to, sub-contract contracts to a third party any or all of its management responsibilities under the any Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheldAgreement. 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 the 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 the 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, 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 this paragraph (iSection 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 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 Security Instruments Pledge Agreement and the other Loan Documents and (iv) shall be immediately 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 the any Management Agreement and replace Managerthe 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:
: (ai) 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 any bankruptcy or insolvency proceeding, or (biv) there exists an Event of Default, (c) there exists a default by Manager under the Management Agreement that continues beyond Maturity Date occurs and the expiration of any applicable notice and cure periodsLoan is not paid in full. At such time as the Manager may be removedis removed as the Manager with respect to any Individual Property, a Qualifying Qualified Manager shall assume management of the applicable such Individual Property pursuant to a Replacement 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 approval of Lender, such approval not to be unreasonably withheld, delayed or conditioned.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Management Agreement. (a) The Improvements on the Properties are operated Borrower represents and managed as “U-Store-It” warrants that Borrower self-service storage facilities (manages the Property, and no agent, affiliated or unaffiliated with Borrower, receives a fee or other than compensation for managing 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 shallshall not engage a property manager for the Property without Lender’s prior written consent, which consent may be conditioned on, among other things, such manager being a Qualified Manager. In the event that Lender determines that the Property is not being managed in accordance with 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 grounds for Lender’s determination. If (A) Lender determines that the conditions specified in Lender’s notice delivered in accordance with the 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) diligently perform Borrower shall, at Lender’s direction, engage a professional third party property manager acceptable to Lender and observe all of enter into a property management agreement acceptable to Lender with such management company (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 (ii) promptly notify Lender Borrower and such third party manager shall execute Lender’s then standard assignment of the giving management agreement and subordination 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 management fees reasonably acceptable to Lender a true copy of each conditionally assigning Borrower’s interest in such notice. management agreement to Lender and subordinating manager’s right to receive fees and expenses under such agreement while the Debt remains outstanding, and (iii) Borrower shall not surrender the Management Agreement, consent to the assignment by the 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower thereafter comply with the terms of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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, Sections 7.2 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor7.3 below.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Management Agreement. (a) The Improvements on Borrower shall (i) cause Manager to manage 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 Property in accordance with 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, (iii) 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 (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 observed, (iii) promptly notify Lender of any default under the Management Agreement of which it is aware, (iv) promptly deliver to Lender a true copy of each such notice. Borrower shall not surrender the Management Agreementfinancial statement, consent to the assignment business plan, capital expenditures plan, estimate, report and each material notice received by the Manager of its interest it 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. Borrower hereby assigns to Lender as further security for the payment of the Debt and for (v) promptly enforce the performance and observance of all of the terms, covenants required to be performed and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender observed by Manager under 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 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 Lender’s other rights or remedies under the generality of the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower from any of its obligations hereunderObligations 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 or take any action 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 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 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. observed.
(b) Borrower shall not, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, 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 for in the Management Agreement); provided, that, so long as no Event of Default shall not have occurred and be unreasonably withheld. continuing or would occur as a result of such replacement, Borrower shallmay replace Manager with a Qualified Manager pursuant to a Qualified Management Agreement, from time (ii) enter into any new or other agreement relating to timethe management or operation of the Property with Manager or any other Person, (iii) consent to the assignment by Manager of its interest under the Management Agreement, (iv) permit or 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 from the Manager such certificates of estoppel with respect Lender’s consent to compliance by Borrower with the terms any surrender, termination, cancellation, modification, renewal or extension of the Management Agreement as may be requested by Lender. in accordance with the terms and provisions of this Agreement), Borrower shall exercise each individual optionenter into a Qualified Management Agreement with a Qualified Manager contemporaneously with such expiration, if anysurrender, termination or cancellation.
(d) Lender shall have the right to extend or renew require Borrower to replace Manager with a Qualified Manager chosen by Borrower which is not an Affiliated Manager to manage the term of the Property pursuant to a Qualified Management Agreement upon demand by Lender made the occurrence of any one or more of the following events: (i) at any time within one (1) year following the occurrence of the last day upon which an Event of Default beyond 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 this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lenderapplicable notice and/or cure periods, (ii) shall be deemed to constitute if at any time a portion of the DebtCash Sweep Period has occurred and is continuing, (iii) if Manager shall be secured by in default under the lien of the Security Instruments Management Agreement beyond any applicable notice and the other Loan Documents and cure period, (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 and replace Manager, without penalty or fee, if at any time during the Loan:
(a) 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 (bv) there exists 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, (c) there exists a default by Manager Borrower shall not exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Management Agreement that continues beyond without the expiration prior written consent of Lender.
(f) If at any applicable notice time Lender consents to the appointment of a new manager and/or the execution of a management agreement under this Agreement, such manager and cure periods. At Borrower shall, as a condition of Lender’s consent, execute an Assignment of Management Agreement and subordination of management fees substantially in the form then used by Lender (or in such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant other form and substance reasonably satisfactory to a Replacement Management AgreementLender).
Appears in 2 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Management Agreement. (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 AgreementBorrower shall maintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Borrower’s obligations thereunder and enforce performance in all material respects of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall cause the Manager to enter into an assignment and subordination of the management agreement in form satisfactory to Lender (the “Subordination of Management Agreement”). The Subordination of Management Agreement shall assign and subordinate the Manager’s interests in the Property and all fees and other rights of the Manager pursuant to the Management Agreement to the rights of Lender. Upon an Event of Default, Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by at Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender ’s request made at any time within one (1) year while such Event of Default continues, terminate, or cause the termination of, the Management Agreement. After the date hereof, Borrower shall not enter into any agreement relating to the management of the last day upon Property with any party without the express written consent of Lender (which any consent shall not be unreasonably withheld to the extent that 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 manager is an affiliate of Borrower); provided, which power however, with respect to a new manager of attorney shall the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph conditioned upon Borrower delivering (i) shall bear interest at a Rating Comfort Letter (if required pursuant to a Pooling and Servicing Agreement from and after the Default Rate from occurrence of a Securitization) with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the date such cost is incurred to the date sense of payment to Lender, clause (ii) shall be deemed to constitute a portion of the Debt, (iiidefined term “Control”) shall be secured by the lien of the Security Instruments and the other Loan Documents REIT), and (ivii) evidence satisfactory to Lender (which shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoinginclude, Borrower, upon at the request of Lender, shall terminate a legal non- consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Borrower, without penalty its shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor 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 any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
Appears in 1 contract
Management Agreement. (a) The Improvements on Tenant shall not, without Landlord's prior written consent, amend or modify 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 provisions of the Management AgreementAgreement which provide (i) that, which have been approved by Lender including from and after the management fees occurrence of any Default or Event of Default, all amounts due from Tenant to the Manager shall be subordinate to all amounts due from Tenant to Landlord, (ii) for operation of the Leased Property under the "Wyndham" name, (iii) that Wyndham, the Manager 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” selftheir Affiliated Persons are prohibited from operating, managing or franchising another full-service storage facilities Wyndham Hotel (as opposed to Wyndham Garden or under such other tradename resort hotels) 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 trademark as may be approved by Lender. In no event shall the management fees permit any action under the Management Agreement exceed three percent (3%) of the gross income derived from the applicable Individual Property. Borrower shallwhich might have a material adverse effect on Landlord, (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 (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 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of LenderLandlord; provided, which however, that Landlord's consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from 49 -40- required in connection with any assignment of the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of Manager's rights under the Management Agreement to (x) any Affiliated Person of the Manager having the full power, right and authority to provide all services and organizational expertise as may be requested contemplated and required by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at or (y) any time within one Person (1including, but not limited to, any Lending Institution) year who acquires all or substantially all of the last day upon which any management contracts of the Manager, provided that, in either such option may be exercisedcase, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact the Leased Property will retain the right to exercise any such option in use the name "Wyndham" name. In the event 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 assignment pursuant to this paragraph clause (y) preceding, provided that the successor Manager (i) shall bear interest at assumes, in writing all obligations of the Default Rate from Manager under the date such cost is incurred to Management Agreement, and (ii) has a Tangible Net Worth, as of the date of payment assignment, equal to Lenderthe greater of the Tangible Net Worth of the Manager as of the date of this Agreement, (ii) and the Tangible Net Worth of the Manager as of the date of such assignment, the Manager shall be deemed released from all liabilities arising under the Management Agreement from and after the effective date of such assignment. Tenant shall not agree to constitute a portion of any change in the DebtManager (except as provided in the preceding sentences), to any change in the Management Agreement (iii) shall be secured by except as provided in 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 foregoingpreceding sentences), Borrower, upon the request of Lender, shall terminate the Management Agreement and replace Manageror 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, without penalty or feehowever, if at any time during that the Loan:
(a) Manager shall become insolvent or may grant a debtor security interest in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default by Manager its right to receive payments under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementwithout Landlord's prior written approval.
Appears in 1 contract
Samples: Lease Agreement (Wyndham Hotel Corp)
Management Agreement. (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 base management fees under the Management Agreement exceed three (I) with respect to the Properties managed by Six Continents Hotels, the sum of (x) five percent (35%) 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 applicable Individual PropertyProperty (excluding any incentive management fees which are subordinate to the Loan). Borrower shall, 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 Borrower 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 Borrower Operating Lessee under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Borrower Operating Lessee of any default by Borrower Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower 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 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. Borrower hereby assigns Subject to Lender as further security for the payment rights of the Debt and for the performance and observance of the termsMortgage Lender, 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 void and of no force and effect. If Borrower 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 Borrower Operating Lessee 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, Borrower shall cause Mortgage Borrower to permit 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 Operating Lessee to be performed or observed to be promptly performed or observed on behalf of BorrowerOperating 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, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender shall have, and are hereby granted, 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, 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 cause Mortgage Borrower and/or Pledgor shall cause Operating Lessee to not, and shall not permit the Manager to, sub-contract all or any or all material portion of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent . Pledgor shall not be unreasonably withheld. Borrower shall, from time cause Operating Lessee to time, obtain from the request of Manager and deliver to Lender upon receipt such certificates of estoppel with respect to compliance by Borrower Operating Lessee with the terms of the Management Agreement as may be requested by Lender. Borrower shall cause Mortgage Borrower and/or Pledgor shall cause Operating Lessee to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercised, extent required to continue it in full force and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in effect until after the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestMaturity Date. 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 Security Instruments 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, BorrowerPledgor shall cause Operating Lessee, upon the request of LenderLender and in accordance with the provisions of the applicable Subordination of Management Agreement, shall to terminate the Management Agreement 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, Default or (c) there exists a an event of default by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periodsAgreement. At such time as the Manager may be removed, provided no Event of Default has occurred, a Qualifying Qualified Manager shall may be selected by Mortgage Borrower and/or Operating Lessee to assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Management Agreement. (a) The Improvements on Borrower shall (i) cause Manager to manage 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 Property in accordance with 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, (iii) 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 (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 observed, (iii) promptly notify Lender of any default under the Management Agreement of which it is aware, (iv) promptly deliver to Lender a true copy of each such notice. Borrower shall not surrender the Management Agreementfinancial statement, consent to the assignment business plan, capital expenditures plan, estimate, report and each material notice received by the Manager of its interest it 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. Borrower hereby assigns to Lender as further security for the payment of the Debt and for (v) promptly enforce the performance and observance of all of the terms, covenants required to be performed and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender observed by Manager under the Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, 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 effectaccordance 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 generality of the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower from any of its obligations hereunderObligations 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 or take any action 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 to observed.
(b) Borrower shall not, without the prior written consent of Lender (which consent may be promptly performed or observed conditioned, without limitation, on behalf Lender’s receipt of Borrower, to the end evidence that the rights same would not result in a breach or violation of Borrower inany Property Document), to and under (i) surrender, terminate, cancel, modify, renew or extend the Management Agreement (other than a renewal or extension provided for in the Management Agreement); provided, that, so long as no Event of Default shall have occurred and be kept unimpaired and free from default. Lender and 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 into any Person designated new or other agreement relating to the management or operation of the Property with Manager or any other Person, (iii) consent to the assignment 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 Manager of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default its interest under the Management Agreement, such notice shall constitute full protection (iv) permit or suffer any transfer of the ownership, management or Control of an Affiliated Manager to Lender for occur, or (v) waive or release 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 responsibilities 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 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 Xxxxxx from time to time with a Qualified Manager chosen by Borrower which is not an Affiliated Manager to manage the Property pursuant to a third-party Qualified Management
(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 appointment of a new manager and/or the execution of a management agreement under this Agreement, which consent shall not be unreasonably withheld. such manager and Borrower shall, from time to timeas a condition of Xxxxxx’s consent, obtain from the Manager such certificates execute an Assignment of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 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 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 and replace Manager, without penalty subordination of management fees substantially in the form then used by Xxxxxx (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 Agreement that continues beyond the expiration of any applicable notice such other form and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant substance reasonably satisfactory to a Replacement Management AgreementLender).
Appears in 1 contract
Management Agreement. (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 base management fees under the Management Agreement exceed three (I) with respect to the Properties managed by Six Continents Hotels, the sum of (x) five percent (35%) 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 applicable Individual PropertyProperty (excluding any incentive management fees which are subordinate to the Loan). Borrower shall, 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 Borrower 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 Borrower Operating Lessee under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Borrower Operating Lessee of any default by Borrower Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower 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 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. Borrower hereby assigns Subject to Lender as further security for the payment rights of the Debt and for the performance and observance of the termsMortgage Lender, 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 void and of no force and effect. If Borrower 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 Borrower Operating Lessee 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, Borrower shall cause Mortgage Borrower to permit 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 Operating Lessee to be performed or observed to be promptly performed or observed on behalf of BorrowerOperating 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, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender shall have, and are hereby granted, 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, 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 cause Mortgage Borrower and/or Operating Lessee to not, and shall not permit the Manager to, sub-contract all or any or all material portion of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time shall cause Operating Lessee to time, obtain from the request of Manager and deliver to Lender upon receipt such certificates of estoppel with respect to compliance by Borrower Operating Lessee with the terms of the Management Agreement as may be requested by Lender. Borrower shall cause Mortgage Borrower and/or Operating Lessee to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercised, extent required to continue it in full force and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in effect until after the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestMaturity Date. 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 Security Instruments 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, BorrowerBorrower shall cause Operating Lessee, upon the request of LenderLender and in accordance with the provisions of the applicable Subordination of Management Agreement, shall to terminate the Management Agreement 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, Default or (c) there exists a an event of default by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periodsAgreement. At such time as the Manager may be removed, provided no Event of Default has occurred, a Qualifying Qualified Manager shall may be selected by Mortgage Borrower and/or Operating Lessee to assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
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Samples: Junior Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Management Agreement. (a) The Improvements on Borrower shall not engage a property manager that is not an Approved Manager without Lender’s prior written consent. In the Properties event that Borrower has engaged a Qualified Manager (that is not an Approved Manager) and thereafter, Lender determines that the Property is not being managed in accordance with generally accepted management practices for properties similar to the 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 operated 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 as “U-Store-It” 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-service storage facilities (other than managing the Properties set forth on Schedule 4.1.31 attached hereto) Property, the Property shall be operated 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 four percent (34%) of the gross income derived from the applicable Individual Property. Borrower shall, 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 (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 the 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, unless following such surrender, assignment or termination, the Property shall be 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 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 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 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 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 responsibilities under the Management Agreement to a third-third party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(bc) 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 the 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 that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
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Management Agreement. If the Lessee decides to enter into a management or agency agreement relating to the management or operation of the Facility (a) The Improvements on collectively, the Properties are operated "Management Agreement"), Lessor shall have the right to approve the Management Agreement , any modifications to the Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and managed as “U-Store-It” self-service storage facilities (any other than the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions of material modification to the Management Agreement, which have been approved by Lender including the management fees and any other items set forth therein. Lessor's approval shall not be unreasonably withheld. The Properties Management Agreement shall provide, among other things, that (other than i) upon termination of this Lease or termination of Lessee's right to possession of 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 Leased Property for any reason whatsoever, the Management Agreement exceed three percent (3%) may be terminated by Lessor without liability for any payment due or to become due to the manager of the gross income derived from Facility (the applicable Individual Property. Borrower shall"Manager"), (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 (ii) promptly notify Lender of the giving of any notice all fees and other amounts payable 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 Lessee to the assignment Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the Manager existence 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. Borrower hereby assigns to Lender as further security for the payment an Event 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 respectDefault, 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 at all times subordinate to Rent and such other amounts after the occurrence of no force an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and effectCovenants. 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 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 applicable Individual Property at ---------------------------
(a) At any time and from time to time for 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 purpose modifications), the date to which the Rent has been paid, whether to the knowledge of taking Lessee there is any such action. If the Manager shall deliver to Lender a copy existing default or Event of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken Default hereunder by Lessor or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall notLessee, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement other information as may be reasonably requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 interestLessor. Any sums expended by Lender such certificate furnished 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 LenderSection may be relied upon by Lessor, (ii) shall be deemed to constitute a portion any lender, any underwriter and any prospective purchaser of the 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 thereforLeased 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 be 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 its 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 Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the 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 modifications), 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 form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly 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 limitation of limiting the foregoing, Borrower, upon the request information shall be sufficient to permit the preparation of Lender, shall terminate a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time Lessee as the Manager may be removedrequired 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, a Qualifying Manager and such material additional third-party costs shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementbe paid or reimbursed by Lessor.
Appears in 1 contract
Management Agreement. (a) The Improvements on Co-Issuers shall, and shall cause 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 shallAsset Entities to, (i) 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 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 each Asset Entity to be performed and observed 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 it has Knowledge, and deliver (iii) prior to Lender a true copy termination of each such notice. Borrower shall not surrender the Manager in accordance with the terms of the Management Agreement, renew the Management Agreement prior to each expiration date thereunder in accordance with its terms.
(b) The Co-Issuers 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, or consent to the assignment by the Manager of its interest under the Management Agreement, or terminate or cancel in each case without delivery of a Rating Agency Confirmation.
(c) The Indenture Trustee (acting solely at the direction of 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, or modify, change, supplement, alter or amend Agreement following the Management Agreement, in any respect, either orally or in writing. Borrower hereby assigns occurrence and continuation of a Manager Termination Event pursuant 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 Section 19(b) of the Management Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment .
(d) The Indenture Trustee is permitted to utilize and in good faith rely upon the advice of the Management AgreementManager in performing certain of its obligations under this Base Indenture and the other Transaction Documents, including, without limitation, confirmation of compliance by the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in Obligors with 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 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 Base Indenture and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall haveother Transaction Documents, and are hereby grantedthe Indenture Trustee shall not have any liability with respect thereto. In addition, the right Indenture Trustee shall have no obligation to enter upon calculate, determine, confirm or verify any amounts hereunder, 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 applicable Individual Property at calculations or determinations thereof by the Manager’s (or any time and from time to time for Class A-1 Administrative Agent in the purpose case 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 Accrued Note Interest 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforVariable Funding Notes).
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
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Management Agreement. (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 AgreementBorrower shall maintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Borrower's obligations thereunder and enforce performance of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall cause the Manager to enter into an assignment and subordination of the management agreement in form satisfactory to Lender (the "SUBORDINATION OF MANAGEMENT Agreement"). The Subordination of Management Agreement shall assign and subordinate the Manager's interests in the Property and all fees and other rights of the Manager pursuant to the Management Agreement to the rights of Lender. Upon an Event of Default, Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by at Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender 's request made at any time within one (1) year while such Event of Default continues, terminate, or cause the termination of, the Management Agreement. Borrower shall not enter into any agreement relating to the management of the last day upon Property with any party without the express written consent of Lender (which any consent shall not be unreasonably withheld to the extent that 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 manager is an affiliate of Borrower); provided, which power of attorney shall however, with respect to a new manager such consent may also be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph conditioned upon Borrower delivering (i) shall bear interest at the Default Rate from the date a Rating Comfort Letter with respect to such cost is incurred to the date of payment to Lendernew manager and management agreement, and (ii) evidence satisfactory to Lender (which shall be deemed to constitute a portion of the Debtinclude, (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 at the request of Lender, shall terminate a legal non-consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Borrower, without penalty its shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor 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 any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
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Management Agreement. (aA) The Improvements on Borrowers shall cause Manager to manage 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 in accordance with 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) Borrowers 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 material 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 (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 each Borrower to be performed and observed and deliver observed, (ii) promptly notify Lender of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Borrowers of its interest any material default under the Management AgreementAgreement of which it is aware, or terminate or cancel and (iii) prior to termination of the Manager in accordance with Section 5.11(C) hereof, Borrower shall renew the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, Agreement prior to each expiration date thereunder in accordance with its terms. If 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 void and of no force and effect. If Borrower Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower the Borrowers to be performed or observed, then, without limiting the generality of Lender's other rights or remedies under this Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower the Borrowers from any of its their obligations hereunderhereunder 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 or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower the Borrowers to be performed or observed to be promptly performed observed.
(B) The Borrowers shall not surrender, terminate, cancel, or observed on behalf of Borrowermodify (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 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 assignment 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 the Manager shall deliver to Lender a copy of any notice sent to Borrower of default its interest under the Management Agreement, in each case without delivery of Rating Confirmations from each of the Rating Agencies and written consent of 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 notice shall constitute full protection to Lender for any action taken new Manager, or omitted to be taken by Lender in good faiththe Acceptable Manager, in reliance thereon. Borrower shall notas 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 form delivered in connection with the closing of the Loan.
(C) Lender shall not permit have the right to require that the Manager tobe replaced with a Person chosen by the Borrowers (or, sub-contract 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 all 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 management responsibilities performance under the Management Agreement, (iii) thirty (30) days after notice from Lender to the Borrowers (a) following 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 the 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 third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforMaterial Adverse Effect.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Management Agreement. (aA) The Improvements on Borrowers shall cause Manager to manage 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 Sites in accordance with 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) Borrowers 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 material 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 (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 each Borrower to be performed and observed and deliver observed, (ii) promptly notify Lender of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Borrowers of its interest any material default under the Management AgreementAgreement of which they are aware, or terminate or cancel and (iii) prior to termination of the Manager in accordance with Section 5.11(C), Borrowers shall renew the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, Agreement prior to each expiration date thereunder 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 accordance with its 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 void and of no force and effect. If Borrower the Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower the Borrowers to be performed or observed, then, without limiting the generality of Lender’s other rights or remedies under Loan Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower the Borrowers from any of its their obligations hereunderhereunder 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 or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower the Borrowers to be performed or observed observed. If the Borrowers fail to be promptly performed or observed on behalf of Borrowerrenew the Management Agreement, the Lender has the right, but not the obligation, to the end that the rights of Borrower in, to and under renew the Management Agreement within ten (10) Business Days’ of receipt of notice from the Manager that the Management Agreement will terminate unless otherwise renewed.
(B) The Borrowers shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall havenot surrender, and are hereby grantedterminate, cancel, or modify other than non-material changes, the right 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 enter upon the applicable Individual Property at any time and from time initial Management Agreement), or consent to time for the purpose of taking any such action. If assignment by the Manager shall deliver to Lender a copy of any notice sent to Borrower of default its interest under the Management Agreement, such notice 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 constitute full protection deliver to Lender for any action taken or omitted copies of all modifications, amendments and supplements 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 responsibilities under the Management Agreement promptly upon execution thereof. If at any time Lender consents to the appointment of a third-party without new Manager, or if an Acceptable Manager shall become the prior written consent Manager, such new Manager, or the Acceptable Manager, as the case may be, and the Borrowers shall, as a condition of Lender’s consent, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel or with respect to compliance by Borrower an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the form delivered in connection with the terms closing of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforLoan.
(bC) Without limitation of Lender shall have the foregoing, Borrower, upon the request of Lender, shall right to terminate the Management Agreement and replace Manager, without penalty or feerequire that the Manager be replaced with a Person chosen by the Borrowers (or, 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 DefaultDefault 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, (cii) there exists 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 that continues beyond the expiration 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 applicable notice and cure periodsPerson chosen by the Borrowers (or the Lender) to be successor Manager who is not an Affiliate of SBA Parent will require Rating Agency Confirmation. At such time as A replacement Manager who satisfies the Manager may foregoing shall be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementan “Acceptable Manager”.
Appears in 1 contract
Samples: Loan and Security Agreement (Sba Communications Corp)
Management Agreement. (a) The Improvements Tenant shall not enter 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 Properties are operated obligations of Tenant regarding the payment of Rent under this Lease, and managed as “U-Store-It” self-service storage facilities (other than iii) such agreement shall provide Landlord the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions 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 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, 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) Tenant 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 material terms, covenants and conditions of the any Management Agreement, Agreement on the part of Borrower Tenant 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 Landlord of any notice by Manager to Borrower Tenant of any material default by Borrower in the performance or observance of any of the terms, covenants or conditions of under 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 which it is aware.
(c) Tenant shall not surrender 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 replaced pursuant to subparagraph (d) below) without the express consent of Landlord, which consent may be 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 more of the following events: (i) thirty (30) days after Notice from Landlord to Tenant that such Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the applicable Management Agreement, consent to or such Manager’s default under the assignment by the Manager of its interest Management Agreement which is not cured within any applicable cure period provided under the Management Agreement; (ii) a change in control of such Manager, other than a change of control resulting from the death 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 legal disability of the Debt and for controlling owner(s) of Manager; or (iii) so long as the performance and observance Existing Mortgage Loan remains in place, if the Existing Lender shall require replacement of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower Manager pursuant 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term Section 5.13(C) of the 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 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 interestExisting Loan Agreement. 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of Notwithstanding the foregoing, Borrower, upon Landlord shall not unreasonably withhold its approval of a change of control in Manager as long as (A) the request then current executive management team of Lender, shall terminate the Management Agreement Manager continues to furnish professional 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 Agreement that continues beyond the expiration of any applicable notice experienced operation and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Projects, (B) Net Operating Income from the Leased Property pursuant continues to equal not less than 1.05 times Base Rent, and (C) as a Replacement Management Agreementresult of such change of control Manager does not become an Affiliate of a Competitor of Landlord.
Appears in 1 contract
Management Agreement. If the Lessee decides to enter into a management or agency agreement relating to the management or operation of the Facility (a) The Improvements on collectively, the Properties are operated "Management Agreement"), Lessor shall have the right to approve the Management Agreement , any modifications to the Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and managed as “U-Store-It” self-service storage facilities (any other than the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions of material modification to the Management Agreement, which have been approved by Lender including the management fees and any other items set forth therein. Lessor's approval shall not be unreasonably withheld. The Properties Management Agreement shall provide, among other things, that (other than i) upon termination of this Lease or termination of Lessee's right to possession of 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 Leased Property for any reason whatsoever, the Management Agreement exceed three percent (3%) may be terminated by Lessor without liability for any payment due or to become due to the manager of the gross income derived from Facility (the applicable Individual Property. Borrower shall"Manager"), (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 (ii) promptly notify Lender of the giving of any notice all fees and other amounts payable 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 Lessee to the assignment Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the Manager existence 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. Borrower hereby assigns to Lender as further security for the payment an Event 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 respectDefault, 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 at all times subordinate to Rent and such other amounts after the occurrence of no force an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel -------------------------------------------------------------------- Certificates and effectCovenants. 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 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 applicable Individual Property at -----------------------------
(a) At any time and from time to time for 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 purpose modifications), the date to which the Rent has been paid, whether to the knowledge of taking Lessee there is any such action. If the Manager shall deliver to Lender a copy existing default or Event of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken Default hereunder by Lessor or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall notLessee, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement other information as may be reasonably requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 interestLessor. Any sums expended by Lender such certificate furnished 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 LenderSection may be relied upon by Lessor, (ii) shall be deemed to constitute a portion any lender, any underwriter and any prospective purchaser of the 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 thereforLeased 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 be 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 its 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 Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the 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 modifications), 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 form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly 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 limitation of limiting the foregoing, Borrower, upon the request information shall be sufficient to permit the preparation of Lender, shall terminate a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time Lessee as the Manager may be removedrequired 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, a Qualifying Manager and such material additional third-party costs shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementbe paid or reimbursed by Lessor.
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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 16.1(b) 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 (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 all amounts due from Tenant to the assignment by Manager other than the Manager of its interest System fee, shall be subordinate to the Lease and all amounts due from Tenant to Landlord under the Management AgreementLease, 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 and (b) for the payment of termination thereof upon 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 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 termination of this Agreement, and without waiving or releasing Borrower from provided, further, that Landlord shall, if it succeeds to Tenant's rights under 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 havemanagement agreement, and are hereby grantedeach management agreement shall so provide, be bound only by the right last management agreement or amendment thereto 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lenderwhich it consented, which consent shall not be unreasonably withheld. Borrower shall, from time conditioned or delayed and provided further that, except in respect of any Management Agreement entered into pursuant to timeSection 14.3(c), obtain from the Manager 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 the Rent to fail to qualify as may be requested "rents from real property" within the meaning of Section 856(d) of the Code, it being agreed by Lender. Borrower shall exercise each individual option, Tenant that if any, to extend or renew Landlord and its counsel reasonably conclude that the term terms of the Management Agreement upon demand by Lender made at any time within one (1) year will have such an effect, then Tenant will modify the terms 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 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 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 the Management Agreement, in the reasonable opinion of Landlord and replace Managerits counsel, without penalty or fee, if at any time during does not cause 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 Rent to be so characterized under the Management Agreement that continues beyond the expiration of Code. Landlord shall have no right to enforce Tenant's rights under any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement, except with respect to the termination thereof following termination of this Agreement.
Appears in 1 contract
Management Agreement. (a) The Improvements on Tenant shall not, without Landlord's prior -------------------- written consent, amend or modify 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 provisions of 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 shall be subordinate to all amounts due from Tenant to Landlord, (ii) for operation of the Leased Property under the "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, which have been approved by Lender including the management fees and grant 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 consent or under such other tradename or trademark as may be approved by Lender. In no event shall the management fees permit any action under the Management Agreement exceed three percent (3%) of the gross income derived from the applicable Individual Property. Borrower shallwhich might have a material adverse effect on Landlord, (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 (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 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of LenderLandlord; provided, which however, that Landlord's consent shall not be unreasonably withheld. Borrower shallrequired 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, from time right and authority to timeprovide all services and organizational expertise as contemplated and required by the Management Agreement or (y) any Person (including, obtain from but not limited to, any Lending Institution) who acquires all or substantially all of the Manager such certificates management contracts of estoppel Wyndham (including, without limitation, all of the Management Agreements with respect to compliance by Borrower with 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 (ii) has a Tangible Net Worth, as of the date of assignment, equal to the greater of the Tangible Net Worth of Wyndham as of the date of this Agreement, and the Tangible Net Worth of Wyndham as of the date of such assignment, Wyndham 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 may be requested by Lender. Borrower shall exercise each individual option, if anyprovided in the preceding sentences), to extend or renew the term of any change in the 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 Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option except as provided in the name of and upon behalf of Borrowerpreceding sentences), which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. 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 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 and replace Manageror 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, without penalty or feehowever, if at any time during that the Loan:
(a) Manager shall become insolvent or may -------- ------- grant a debtor security interest in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default by Manager its right to receive payments under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementwithout Landlord's prior written approval.
Appears in 1 contract
Management Agreement. (aA) The Improvements on Borrowers shall cause Manager to manage 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 Sites in accordance with 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) Borrowers 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 material 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 (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 each Borrower to be performed and observed and deliver observed, (ii) promptly notify Lender of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Borrowers of its interest any material default under the Management AgreementAgreement of which they are aware, or terminate or cancel and (iii) prior to termination of Manager in accordance with Section 5.11(C), the Borrowers shall renew the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, Agreement prior to each expiration date thereunder 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 accordance with its 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 void and of no force and effect. If Borrower the Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower the Borrowers to be performed or observed, then, without limiting the generality of Lender’s other rights or remedies under this Loan Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower the Borrowers from any of its their obligations hereunderhereunder 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 or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower the Borrowers to be performed or observed observed. If the Borrowers fail to be promptly performed or observed on behalf of Borrowerrenew the Management Agreement, Lender has the right, but not the obligation, to the end that the rights of Borrower in, to and under renew the Management Agreement within ten (10) Business Days’ of receipt of notice from Manager that the Management Agreement will terminate unless otherwise renewed.
(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 (under a management agreement substantially similar in all material respects to the initial Management Agreement, except that the Management Fee thereunder shall be kept unimpaired and free from default. Lender and any Person designated an amount agreed by Lender shall havethe successor Manager not to exceed 10% of Operating Revenues), and are hereby granted, or consent to the right to enter upon the applicable Individual Property at any time and from time to time for the purpose assignment by Manager of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default its interest under the Management Agreement, such notice shall constitute full protection other than to Lender for any action taken or omitted to be taken by Lender in good faithan Acceptable Manager, in reliance thereon. Borrower shall not, 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 shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender. In any case, which consent the Borrowers shall not be unreasonably withhelddeliver to Lender copies of all material modifications, amendments and supplements to the Management Agreement promptly upon execution thereof. Borrower 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, from time to timeas a condition of Lender’s consent, obtain from the Manager such certificates of estoppel or with respect to compliance by Borrower an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the form delivered in connection with the terms closing of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforLoan.
(bC) Without limitation of Lender shall have the foregoing, Borrower, upon the request of Lender, shall right to terminate the Management Agreement and replace Manager, without penalty or feerequire that Manager be replaced with a Person chosen by the Borrowers (or, 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 DefaultDefault 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, (cii) there exists 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 that continues beyond the expiration 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 applicable notice and cure periods. At such time as Person chosen by the Borrowers (or Lender) to be successor Manager will require Rating Agency Confirmation (which Rating Agency Confirmation may not be removed, a Qualifying Manager shall assume management deemed satisfied pursuant to Section 11.13 of the applicable Individual Property pursuant to a Replacement Management Trust Agreement). A replacement Manager who satisfies the foregoing shall be an “Acceptable Manager”.
Appears in 1 contract
Samples: Loan and Security Agreement (American Tower Corp /Ma/)
Management Agreement. If the Lessee decides to enter into a management or agency agreement relating to the management or operation of the Facility (a) The Improvements on collectively, the Properties are operated "Management Agreement"), Lessor shall have the right to approve the Management Agreement , any modifications to the Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and managed as “U-Store-It” self-service storage facilities (any other than the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions of material modification to the Management Agreement, which have been approved by Lender including the management fees and any other items set forth therein. Lessor's approval shall not be unreasonably withheld. The Properties Management Agreement shall provide, among other things, that (other than i) upon termination of this Lease or termination of Lessee's right to possession of 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 Leased Property for any reason whatsoever, the Management Agreement exceed three percent (3%) may be terminated by Lessor without liability for any payment due or to become due to the manager of the gross income derived from Facility (the applicable Individual Property. Borrower shall"Manager"), (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 (ii) promptly notify Lender of the giving of any notice all fees and other amounts payable 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 Lessee to the assignment Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the Manager existence 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. Borrower hereby assigns to Lender as further security for the payment an Event 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 respectDefault, 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 at all times subordinate to Rent and such other amounts after the occurrence of no force an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel --------------------------------------------------------------- Certificates and effectCovenants. 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 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 applicable Individual Property at ---------------------------
(a) At any time and from time to time for 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 purpose modifications), the date to which the Rent has been paid, whether to the knowledge of taking Lessee there is any such action. If the Manager shall deliver to Lender a copy existing default or Event of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken Default hereunder by Lessor or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall notLessee, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement other information as may be reasonably requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 interestLessor. Any sums expended by Lender such certificate furnished 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 LenderSection may be relied upon by Lessor, (ii) shall be deemed to constitute a portion any lender, any underwriter and any prospective purchaser of the 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 thereforLeased 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 be 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 its 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 Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the 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 modifications), 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 form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly 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 limitation of limiting the foregoing, Borrower, upon the request information shall be sufficient to permit the preparation of Lender, shall terminate a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time Lessee as the Manager may be removedrequired 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, a Qualifying Manager and such material additional third-party costs shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementbe paid or reimbursed by Lessor.
Appears in 1 contract
Management Agreement. (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) Company 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 enter into 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 (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 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. 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 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 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 Property with Property Manager (which Management Agreement shall be kept unimpaired updated and free from default. 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, supplemented from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 this paragraph (i) shall bear interest at which Property Manager will provide the Default Rate from the date such cost is incurred management services described therein 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforCompany.
(b) Without limitation The Management Agreement shall be terminable in the event of an exercise of rights under Section 14, or by the foregoing, Borrower, upon the request of Lender, shall terminate Company only "for cause," as defined in the Management Agreement and replace Manageron written notice from the Managers (for the avoidance of doubt, without penalty or fee, if at any time during the Loan:
(a) Manager exercise of rights by either party under Section 14 shall become insolvent or not be a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists Major Decision). The Managers acknowledge that a default by Manager under third party lender may require the Management Agreement that continues beyond to be terminable on thirty (30) days' notice but the expiration Managers shall not exercise such right except (i) for cause or (ii) as required by such lender; provided, however, if during the term of this Agreement, an Affiliate of TSC enters into a management agreement with the Property Owner to manage the Property ("TSC Affiliate Management Agreement"), Bluerock may, without any applicable notice and cure periodsto or consent or approval from TSC, terminate the TSC Affiliate Management Agreement (i) for cause or (ii) as required by such lender. At such time as the Manager may be removed, a Qualifying Manager shall assume management Any delegation of the applicable Individual responsibilities of Property pursuant Manager or the subcontracting for such services will be subject to Managers' 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 asset. Unless otherwise agreed, all such contracts will be payable on a Replacement Management Agreementmonthly 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 acquire 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 borne equally by Bluerock and TSC, and shall be included in their respective Capital Contributions. Upon the sale of the Property by the Company (and so long as Bluerock has been paid its Preferred Return), Trade Street Investments Advisors, LLC shall earn and the 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 Property multiplied by one percent (1.0%).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Management Agreement. (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) Leasehold Borrower 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 perform, observe and observe enforce all of the terms, covenants and conditions of the Management Agreement, Agreement on the part of Leasehold Borrower to be performed performed, observed and observed enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Leasehold Borrower under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Leasehold Borrower of any default by Leasehold Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Leasehold Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Without Lender’s prior written consent, not to be unreasonably withheld, conditioned or delayed, Leasehold Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager of its interest under the Management Agreement, or terminate or cancel the Management Agreement, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing. , and Leasehold 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 Leasehold Borrower to surrender the Management Agreement, Agreement or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, Agreement in any respect, and any such surrender of the Management Agreement, Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement, Agreement without the prior consent of Lender shall be void and of no force and effect. .
(b) If Leasehold Borrower shall default beyond any applicable notice and/or grace period in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Leasehold Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Leasehold 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 Leasehold Borrower to be performed or observed to be promptly performed or observed on behalf of Leasehold Borrower, to the end that the rights of Leasehold Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person 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 the Manager shall deliver to Lender a copy of any notice sent to Leasehold 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. .
(c) Leasehold Borrower shall not, and shall not permit the notify Lender if Manager to, sub-contract contracts to a third party or an affiliate any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheldAgreement. Leasehold Borrower shall, from time to time, use its best efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Leasehold Borrower with the terms of the Management Agreement as may be reasonably requested by Lender. Leasehold Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 Leasehold Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Leasehold 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 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 Security Instruments Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(bd) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate if the Management Agreement is terminated pursuant to the Assignment of Management Agreement or for any other reason, then Lender, at its option, may require Leasehold Borrower to engage, in accordance with the terms and replace conditions set forth in the Assignment of Management Agreement, a new manager (the “New Manager”) to manage the Property, without penalty or fee, if at any time during the Loan:
(a) which such New Manager shall become insolvent or be 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 Agreement that continues beyond the expiration of any applicable notice and cure periodsQualified Manager. At such time as the Manager may be removed, a Qualifying New Manager shall assume management of the applicable Individual Property be engaged by Leasehold Borrower pursuant to a Replacement written management agreement that complies with the terms hereof and of the Assignment of Management AgreementAgreement and is otherwise satisfactory to Lender in all respects. New Manager and Leasehold Borrower shall execute an Assignment of Management Agreement in the form then used by Lender which shall provide, among other things, that the payment of any fee to New Manger is subordinate to the payment of Debt Service. Without limitation of the foregoing, if required by Lender, Leasehold Borrower shall, as a condition precedent to Leasehold Borrower’s engagement of such New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and management agreement. To the extent that such New Manager is an Affiliated Manager, Leasehold Borrower’s engagement of such New Manager shall be subject to Leasehold Borrowers’ delivery to Lender of a New Non-Consolidation Opinion with respect to such New Manager and new management agreement.
Appears in 1 contract
Management Agreement. (a) The Improvements on Issuer shall, and shall cause its Subsidiaries to, cause the Manager to manage 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 in accordance with 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 Issuer shall, and shall cause its Subsidiaries to, (i1) 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 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 the Issuer and each of its Subsidiary to be performed and observed and deliver (2) promptly notify the Trustee of any notice to Lender a true copy any of each such notice. Borrower the Issuer or its Subsidiaries of any material default under the Management Agreement of which it is aware.
(b) The Issuer shall not, and shall cause its Subsidiaries not surrender 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. If Holders of a majority in principal amount of the outstanding Notes consent to the appointment of a new Manager, or terminate or cancel if an Acceptable Manager becomes the Management AgreementManager, such new Manager, or modifythe Acceptable Manager, changeas the case may be, supplementand the Issuer and its Subsidiaries will, alter or amend with respect to an Acceptable Manager, prior to commencement of its duties as the Management AgreementManager, execute a subordination of management agreement in any respect, either orally or in writing. Borrower hereby assigns to Lender substantially the form previously delivered by the Manager as further security for the payment of the Debt and for the performance and observance Issue Date.
(c) Holders of a majority in principal amount 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 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 without waiving or releasing Borrower from any of its obligations hereunder, Lender outstanding Notes shall have the rightright to remove the Manager and replace such Manager with a Person to be selected by the Issuer and reasonably acceptable to Trustee (or, but shall be under no obligationif 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 pay occur of any sums and to perform any act one or take any action as may be appropriate to cause all the terms, covenants and conditions more of the Management Agreement on the part following events: (1) an Event of Borrower to be performed or observed to be promptly performed or observed on behalf of BorrowerDefault has occurred and is then continuing, (2) thirty (30) days after notice from Trustee to the end that Issuer if the rights of Borrower inManager has engaged in fraud, to and gross negligence or willful misconduct arising from or in connection with its performance 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 applicable Individual Property at any time and from time to time for the purpose of taking any such action. If or (3) the Manager shall deliver to Lender a copy of any notice sent to Borrower of default defaults under the Management Agreement, such notice shall constitute full protection default is reasonably likely to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall nothave a Material Adverse Effect, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior such default remains unremedied for thirty (30) days following written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred notice 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforManager.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Management Agreement. (a) The Improvements on Company shall enter into a management and leasing agreement with BPLP or its Affiliate (the Properties are operated "PROPERTY MANAGER") in substantially the form attached hereto as EXHIBIT B (the "MANAGEMENT AGREEMENT"). The Managing Member shall be entitled to receive under this Agreement, for its own account and managed 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 by the Property Manager pursuant to the Management Agreement (but only as “U-Store-It” self-service storage facilities (other than and to the Properties set forth on Schedule 4.1.31 attached hereto) extent Property Manager is not entitled to receive such payment under the terms and conditions of the Management Agreement. Should the Management Agreement terminate for any reason, which have been approved by Lender including the Company shall enter into an agreement for management fees 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 other items set forth therein. The Properties (other than such agreement with an Affiliate of 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 Managing Member, and provided that in no event shall the fees payable under any applicable management fees under the Management Agreement exceed three percent (3%) agreement with any such Affiliate of the gross income derived Managing Member differ from the applicable Individual Property. Borrower shall, (ithose set forth in this SECTION 6.4(a) 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 (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 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent all Members). Any such replacement management agreement with an Affiliate of the Managing Member shall not be unreasonably withheldon materially different terms with respect to the level of services, standards and obligations to be provided by the property manager thereunder, than the original Management Agreement. Borrower shallThe 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 its corporate offices. All such reimbursement amounts shall at all times to be consistent with the then current practices of the Property Manager and its Affiliates with respect to such matters on properties similar to the Property. 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, obtain from the Manager such certificates of estoppel Managing Member may consult with the Ceppeto Members with respect to compliance by Borrower the material issues related thereto; PROVIDED, HOWEVER, that the Managing Member may adopt such guidelines in its sole and absolute discretion without the approval of the Ceppeto Members, notwithstanding any objections or other concerns relating to such consultation or the fact that such consultation did not occur. The Members acknowledge that Xxxxx Xxxx LaSalle shall be engaged as the exclusive leasing agent for the Property for a three (3) year term commencing on the Effective Date, on such other terms and conditions and pursuant to such agreement as shall be mutually acceptable to the Managing Member and Xxxxx 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 all or a portion of the costs associated with leasing space at the Property or for any other working capital needs of the Company, PROVIDED that such financing is permitted under the terms of the Management Agreement as may be requested by Lender. Borrower Senior Loan and PROVIDED FURTHER that, in no event (except only in connection with a Refinancing) shall exercise each individual option, if any, the Company borrow such amounts prior to extend or renew the term fifteenth (15th) anniversary of the Management Agreement upon demand by Lender made at any time within one (1) year Effective Date if the rate of interest payable thereon is in excess of the last day upon 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 Company to obtain such additional financing, the Managing Member (or its Affiliates) shall have the right to provide such financing in an amount and on terms and conditions no less favorable than the Company would have obtained from an unaffiliated third-party lender (but subject to the provisos set forth in the third sentence of this SECTION 6.4(b)), PROVIDED, HOWEVER, that if 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 any notice shall specify the material terms and conditions of such option may proposed financing (which terms and conditions shall be exercisedno less favorable than the Company could have obtained from an unaffiliated third-party lender, as determined by the Managing Member, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact the Ceppeto Members shall have the right to exercise any provide their proportionate share of such option financing (based upon the then applicable Percentage Interests), such election to be made, in writing, within thirty (30) days after the name of and upon behalf of Borrowerdate 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, which power of attorney shall be irrevocable and they shall be deemed to be coupled with an interesthave elected not to provide their proportionate share of such financing. Any sums expended such loan made by Lender pursuant the Managing Member shall be on terms substantially the same as those contained in the applicable notice provided to this paragraph (i) the Ceppeto Members, and shall bear interest at the Default Rate from the date such cost is incurred to close no later than 180 days after the date of payment to Lendersuch notice. If the financing does not close within such time, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Security Instruments and the other Loan Documents Managing Member still intends to provide such financing, the Managing Member shall so notify the Ceppeto Members and (iv) shall be immediately due and payable upon demand by Lender thereforagain allow the Ceppeto Members the option to participate in such financing on the terms set forth above.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
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Management Agreement. (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 As of the Management AgreementExecution Date, 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%) shall be in full force and effect and Manager shall have no defenses or claims against Borrower with respect thereto. Any new or subsequent agreements providing for the management and operation of the gross income derived from Fairmont Hotel shall be subject to Lender’s approval.
(b) The Management Agreement shall be subordinated to the applicable Individual Property. Borrower shall, (i) diligently perform and observe all lien of the terms, covenants Mortgage pursuant to an Assignment and conditions Subordination 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 Consent of Manager dated as of the giving date of this Mortgage, and further shall be assigned to Lender as additional security for the Loan.
(c) Notwithstanding any notice by Manager provision to Borrower of any default by Borrower the contrary contained herein or in the performance or observance of any of other Loan Documents, the termsBorrower and Operating Lessee may not amend, 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 of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend waive any right under the Management AgreementAgreement without the written consent of Lender, in provided however, without any respectrequirement for consent, either orally or in writing. Borrower hereby assigns and Operating Lessee may agree 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, nonmaterial 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 to the Management Agreement on and waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect 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 cash management procedures set forth in the Management Agreement on or the part 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 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 be performed the Borrower or observed to be promptly performed Operating Lessee thereunder, change the priority of distributions of “net cash flow”, or observed on behalf words of Borrowersimilar meaning, to the end that the rights of Borrower inor Operating Lessee thereunder, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall haveincrease or decrease reserve requirements, 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew change the term of the Management Agreement upon demand or increase any Management Fees (as defined in the Management Agreement) payable under such Management Agreement.
(d) Notwithstanding the foregoing, Borrower or Operating Lessee may enter into a new Management Agreement approved by Lender made with 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 within one (1) year prior to two years after the Execution Date, the property managers and brands 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 Acceptable Manager listed 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 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 below, provided (x) each such property manager or brand continues to be deemed to constitute a portion controlled by substantially the same Persons Controlling (as defined in Section 10.4 (d)) such property manager or brand as of the DebtExecution Date (or if such manager is a publicly traded company, (iii) shall such manager continues to be secured by the lien of the Security Instruments and the other Loan Documents publicly traded on an established securities market), and (ivy) shall be immediately due and payable upon demand by Lender therefor.
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) Without limitation during such two year period, any Close Affiliate (as defined in Section 10.4(d)) of any of the foregoingforegoing 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, Borrower, upon the request of Lender, shall terminate the Management Agreement and replace Manager, without penalty such Close Affiliate continues to be publicly traded on an established securities market); 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 any other reputable and experienced professional hotel management company (A) which, or a default by Manager under Close Affiliate of which, shall have at least five years’ experience in the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of hotel properties substantially similar in size and complexity to the applicable Individual Property pursuant to Property, (B) which, or a Replacement Management AgreementClose Affiliate of which, 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.
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Samples: Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. (aA) The Improvements on Borrowers shall cause Manager to manage 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 in accordance with 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) Borrowers 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 material 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 (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 each Borrower to be performed and observed and deliver observed, (ii) promptly notify Lender of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Borrowers of its interest any material default under the Management AgreementAgreement of which it is aware, or terminate or cancel and (iii) prior to termination of the Manager in accordance with Section 5.11(C) hereof, Borrower shall renew the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, Agreement prior to each expiration date thereunder in accordance with its terms. If 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 void and of no force and effect. If Borrower Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower the Borrowers to be performed or observed, then, without limiting the generality of Lender's other rights or remedies under this Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower the Borrowers from any of its their obligations hereunderhereunder 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 or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower the Borrowers to be performed or observed to be promptly performed observed.
(B) The Borrowers shall not surrender, terminate, cancel, or observed on behalf of Borrowermodify (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 end that assignment by the rights Manager of Borrower in, to and its interest under the Management Agreement Agreement, in each case without delivery of Rating Confirmations from each of the Rating Agencies and written consent of the Lender. If at any time Lender consents to the appointment of a new Manager, or if an Acceptable Manager shall be kept unimpaired become the Manager, such new Manager, or the Acceptable Manager, as the case may be, and free from default. Lender and any Person designated by 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 form delivered in connection with the closing of the Loan.
(C) Lender shall have, and are hereby granted, have the right to enter 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 applicable Individual Property at earliest to occur of any time 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 time Lender to time for the purpose 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 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 taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default rather than factors affecting the Borrowers' industry generally, or (iv) Manager defaults under the Management Agreement, such notice shall constitute full protection default is reasonably likely to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall nothave a Material Adverse Effect, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement such default remains unremedied for thirty (30) days following written notice to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforManager.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated and managed as “U-Store-It” self-service storage facilities (With respect to all Property other than the Properties set forth on Schedule 4.1.31 attached hereto) under T-Mobile Property, Borrower shall manage such Property in its own name and for its own account, and shall not enter into any agreement relating to the management or operation of such Property with any affiliate of Borrower or any third party, without 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, the management fees payable to such manager and the terms and conditions provisions of such Management Agreement shall be subordinate to the Loan Documents and to Lender’s rights in the Property, and Borrower and such manager shall execute a Subordination of Management Agreement, which have been approved Agreement in the form then being used by Lender including Lender. With respect to the management fees existing T-Mobile Management Agreement and to 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 future Management Agreement for any Property as may be approved by Lender. In no event Lender as provided in this Section 5.11.1, Borrower 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 cause the Property to be managed pursuant to the Management Agreement; (ii) promptly perform and observe in all material respects all of the terms, covenants and conditions of the Management Agreement, on the part of Borrower required to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired in all material respects its rights thereunder; (iiiii) promptly within five (5) Business Days of obtaining knowledge thereof, notify Lender of the giving of any notice by Manager to Borrower of any default by Borrower in the performance or observance of that extends beyond any of the terms, covenants or conditions of applicable notice and/or cure period under the Management Agreement on of which it is aware; (iv) within five (5) Business Days after receipt 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 Borrower under the part Management Agreement; and (v) promptly enforce in a commercially reasonable manner the performance and observance of Borrower all of the covenants required 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 of its interest under the Management Agreement. Further, 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, without Lender’s prior written consent, Borrower shall not (a) surrender, terminate, cancel, extend or terminate renew the Management Agreement (except for automatic extensions or cancel renewals of 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, in ; or (e) suffer or permit the occurrence and continuance of a default beyond 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 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 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 applicable cure period under the Management Agreement shall be kept unimpaired and free from default. Lender and (or 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 successor management agreement) if such action. If default permits 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 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 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume successor management of the applicable Individual Property pursuant to a Replacement Management Agreementagreement).
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Management Agreement. (a) The Improvements Tenant shall not enter 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 Properties are operated obligations of Tenant regarding the payment of Rent under this Lease and managed as “U-Store-It” self-service storage facilities is otherwise approved by Landlord, and (other than iii) such agreement shall provide Landlord the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions 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 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, 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) Tenant 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 material terms, covenants and conditions of the any Management Agreement, Agreement on the part of Borrower Tenant 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 Landlord of any notice by Manager to Borrower Tenant of any material default by Borrower in the performance or observance of any of the terms, covenants or conditions of under 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 which it is aware.
(c) Tenant shall not surrender 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 replaced pursuant to subparagraph (d) below) without the express consent of Landlord, which consent may be conditioned upon the approval of the Existing Lender or any 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 more of the following events: (i) thirty (30) days after Notice from Landlord to Tenant that such Manager has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the applicable Management Agreement, consent to or such Manager's default under the assignment by the Manager of its interest Management Agreement which is not cured within any applicable cure period provided under the Management Agreement; (ii) a change in control of such Manager, other than a change of control resulting from the death 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 legal disability of the Debt and for controlling owner(s) of Manager; or (iii) so long as the performance and observance Existing Mortgage Loan remains in place, if the Existing Lender shall require replacement of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower Manager pursuant 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term Section 5.13(C) of the 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 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 interestExisting Loan Agreement. 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of Notwithstanding the foregoing, Borrower, upon Landlord shall not unreasonably withhold its approval of a change of control in Manager as long as (A) the request then current executive management team of Lender, shall terminate the Management Agreement Manager continues to furnish professional 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 Agreement that continues beyond the expiration of any applicable notice experienced operation and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Projects, (B) Net Operating Income from the Leased Property pursuant continues to equal not less than 1.05 times Base Rent, and (C) as a Replacement Management Agreementresult of such change of control Manager does not become an Affiliate of a Competitor of Landlord.
Appears in 1 contract
Management Agreement. (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 As of the Management AgreementExecution Date, 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%) shall be in full force and effect and Manager shall have no defenses or claims against Affiliated Guarantor with respect thereto. Any new or subsequent agreements providing for the management and operation of the gross income derived from Fairmont Hotel shall be subject to Lender’s approval.
(b) The Management Agreement shall be subordinated to the applicable Individual Property. Borrower shall, (i) diligently perform and observe all lien of the terms, covenants Mortgage pursuant to an Assignment and conditions Subordination 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 Consent of Manager dated as of the giving date of this Mortgage and recorded, and further shall be assigned to Lender as additional security for the Loan.
(c) Notwithstanding any notice by Manager provision to Borrower of any default by Borrower the contrary contained herein or in the performance or observance of any of other Security Documents, the termsAffiliated Guarantor and Operating Lessee may not amend, 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 of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend waive any right under the Management AgreementAgreement without the written consent of Lender, in provided however, without any respectrequirement for consent, either orally or in writing. Borrower hereby assigns Affiliated Guarantor and Operating Lessee may agree 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, nonmaterial 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 to the Management Agreement on and waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect 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 cash management procedures set forth in the Management Agreement on or the part Fairmont Loan Documents, decrease the cash flow of Borrower 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 be performed add additional items to or observed delete items from such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or words of similar meaning so as to be promptly performed reduce the payments due the Affiliated Guarantor thereunder, change the definition of “debt service amount” or observed on behalf “owner indebtedness”, or “net cash flow” or “net operating cash flow”, or words of Borrowersimilar meaning, change the timing of remittances to the Affiliated Guarantor or Operating Lessee thereunder, change the priority of distributions of “net cash flow”, or words of similar meaning, to the end that the rights of Borrower inAffiliated Guarantor or Operating Lessee thereunder, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall haveincrease or decrease reserve requirements, 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew change the term of the Management Agreement upon demand by Lender made at or increase any time within one Basic Fee (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 as defined 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 this paragraph Management Agreement) or Incentive Fee (ias defined in the Management Agreement) shall bear interest at the Default Rate from the date payable under 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforManagement Agreement.
(bd) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Affiliated Guarantor or Operating Lessee may not enter into a new Management Agreement unless approved by Lender in its sole 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementabsolute discretion.
Appears in 1 contract
Samples: Subordinate Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. (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 AgreementBorrower shall maintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Borrower’s obligations thereunder and enforce performance in all material respects of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall cause the Manager to enter into an assignment and subordination of the management agreement in form satisfactory to Lender (the “Subordination of Management Agreement”). The Subordination of Management Agreement shall assign and subordinate the Manager’s interests in the Property and all fees and other rights of the Manager pursuant to the Management Agreement to the rights of Lender. Upon an Event of Default, Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by at Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender ’s request made at any time within one (1) year while such Event of Default continues, terminate, or cause the termination of, the Management Agreement. After the date hereof, Borrower shall not enter into any agreement relating to the management of the last day upon Property with any party without the express written consent of Lender (which any consent shall not be unreasonably withheld to the extent that 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 manager is an affiliate of Borrower); provided, which power however, with respect to a new manager of attorney shall the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph conditioned upon Borrower delivering (i) shall bear interest at a Rating Comfort Letter with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the Default Rate from the date such cost is incurred to the date sense of payment to Lender, clause (ii) shall be deemed to constitute a portion of the Debt, (iiidefined term “Control”) shall be secured by the lien of the Security Instruments and the other Loan Documents REIT), and (ivii) evidence satisfactory to Lender (which shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoinginclude, Borrower, upon at the request of Lender, shall terminate a legal non-consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Borrower, without penalty its shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor 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 any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
Appears in 1 contract
Management Agreement. If the Lessee decides to enter into a management or agency agreement relating to the management or operation of the Facility (a) The Improvements on collectively, the Properties are operated "Management Agreement"), Lessor shall have the right to approve the Management Agreement , any modifications to the Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and managed as “U-Store-It” self-service storage facilities (any other than the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions of material modification to the Management Agreement, which have been approved by Lender including the management fees and any other items set forth therein. Lessor's approval shall not be unreasonably withheld. The Properties Management Agreement shall provide, among other things, that (other than i) upon termination of this Lease or termination of Lessee's right to possession of 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 Leased Property for any reason whatsoever, the Management Agreement exceed three percent (3%) may be terminated by Lessor without liability for any payment due or to become due to the manager of the gross income derived from Facility (the applicable Individual Property. Borrower shall"Manager"), (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 (ii) promptly notify Lender of the giving of any notice all fees and other amounts payable 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 Lessee to the assignment Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the Manager existence 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. Borrower hereby assigns to Lender as further security for the payment an Event 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 respectDefault, 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 at all times subordinate to Rent and such other amounts after the occurrence of no force an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel --------------------------------------------------------------- Certificates and effectCovenants. 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 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 applicable Individual Property at --------------------------
(a) At any time and from time to time for 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 purpose modifications), the date to which the Rent has been paid, whether to the knowledge of taking Lessee there is any such action. If the Manager shall deliver to Lender a copy existing default or Event of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken Default hereunder by Lessor or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall notLessee, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement other information as may be reasonably requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 interestLessor. Any sums expended by Lender such certificate furnished 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 LenderSection may be relied upon by Lessor, (ii) shall be deemed to constitute a portion any lender, any underwriter and any prospective purchaser of the 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 thereforLeased 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 be 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 its 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 Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the 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 modifications), 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 form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly 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 limitation of limiting the foregoing, Borrower, upon the request information shall be sufficient to permit the preparation of Lender, shall terminate a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time Lessee as the Manager may be removedrequired 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, a Qualifying Manager and such material additional third-party costs shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementbe paid or reimbursed by Lessor.
Appears in 1 contract
Management Agreement. (a) The Improvements on Notwithstanding anything to the Properties are operated contrary contained herein or in any other Loan Document, (i) until the occurrence of a Manager Trigger, any covenants and managed 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 “U-Store-It” self-service storage facilities applicable) shall, in each case, be deemed to apply only as and to the extent applicable (other than the Properties set forth on Schedule 4.1.31 attached hereto) under 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 Management AgreementProperty in accordance with the applicable terms and conditions hereof, 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 directly undertake and perform the management fees under duties of a property manager at the Management Agreement exceed three percent (3%) of the gross income derived from Property and otherwise comply with the applicable Individual covenants contained herein and in the other Loan Documents related thereto (the foregoing, 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 be (A) selected by Borrower shall, 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 perform and promptly perform, observe and enforce all of the terms, covenants and conditions of the Management Agreement, Agreement on the part of Borrower to be performed performed, observed and observed 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 Agreement, (ii) promptly notify Lender of any default under the giving Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Manager Borrower under the Management Agreement; (iv) promptly give notice to Borrower Lender of any default by notice or information that Borrower in the performance or observance of any of the terms, covenants or conditions of receives which indicates that Manager is terminating the Management Agreement on or that Manager is otherwise discontinuing its management of the part Property; and (v) promptly enforce the performance and observance of Borrower all of the covenants required 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 of its interest under the Management Agreement.
(c) Xxxxxxxx shall not, or without the prior written consent of Xxxxxx, (i) surrender, terminate or cancel the Management Agreement, consent to any assignment of the Manager’s interest under the Management Agreement or modifyotherwise replace Manager or renew or extend any Management Agreement (exclusive of, changein each case, supplementany 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, alter or amend however, that Borrower may replace Manager and/or consent to the assignment of Manager’s interest under the Management Agreement, in any respecteach case, either orally or in writing. Borrower hereby assigns to Lender as further security for accordance with the payment applicable terms and conditions hereof and of the Debt and for other Loan Documents; (ii) reduce or consent to the performance and observance reduction of the terms, covenants and conditions term of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, ; (iii) increase or consent to terminate, cancel, the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend the Management Agreementamend, in any material respect, or waive or release any of its material rights and any such surrender of remedies under, 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. 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 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 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 notify Lender if Manager to, sub-contract contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Agreement.
(e) Borrower shall, from time to time, use its best efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by LenderXxxxxx. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender Xxxxxx 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.
(f) In the event that the Management Agreement 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 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. Manager shall not (and Xxxxxxxx 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 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 engage, in accordance with the terms and conditions set forth herein and in the Assignment of Management Agreement, 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 Xxxxxx, 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 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 Xxxxxx’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 Xxxxxx 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 paragraph (i) Section 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 Security Instruments 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 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Management Agreement. (a) The Improvements on Notwithstanding anything to the Properties are operated contrary contained herein or in any other Loan Document, (i) until the occurrence of a Manager Trigger, any covenants and managed 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 “U-Store-It” self-service storage facilities applicable) shall, in each case, be deemed to apply only as and to the extent applicable (other than the Properties set forth on Schedule 4.1.31 attached hereto) under 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 Management AgreementProperty in accordance with the applicable terms and conditions hereof, 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 directly undertake and perform the management fees under duties of a property manager at the Management Agreement exceed three percent (3%) of the gross income derived from Property and otherwise comply with the applicable Individual covenants contained herein and in the other Loan Documents related thereto (the foregoing, 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 be (A) selected by Borrower shall, 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 perform and promptly perform, observe and enforce all of the terms, covenants and conditions of the Management Agreement, Agreement on the part of Borrower to be performed performed, observed and observed 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 Agreement, (ii) promptly notify Lender of any default under the giving Management Agreement; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Manager Borrower under the Management Agreement; (iv) promptly give notice to Borrower Lender of any default by notice or information that Borrower in the performance or observance of any of the terms, covenants or conditions of receives which indicates that Manager is terminating the Management Agreement on or that Manager is otherwise discontinuing its management of the part Property; and (v) promptly enforce the performance and observance of Borrower all of the covenants required 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 of its interest under the Management Agreement.
(c) Borrower shall not, or 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 modifyotherwise replace Manager or renew or extend any Management Agreement (exclusive of, changein each case, supplementany 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, alter or amend however, that Borrower may replace Manager and/or consent to the assignment of Manager’s interest under the Management Agreement, in any respecteach case, either orally or in writing. Borrower hereby assigns to Lender as further security for accordance with the payment applicable terms and conditions hereof and of the Debt and for other Loan Documents; (ii) reduce or consent to the performance and observance reduction of the terms, covenants and conditions term of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, ; (iii) increase or consent to terminate, cancel, the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend the Management Agreementamend, in any material respect, or waive or release any of its material rights and any such surrender of remedies under, 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. 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 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 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 notify Lender if Manager to, sub-contract contracts to a third party or an Affiliate any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Agreement.
(e) Borrower shall, from time to time, use its best efforts to obtain from Manager under the Manager 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 exercise each individual option, if any, to extend or renew the term of the 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 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.
(f) In the event that the Management Agreement 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 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. 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 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 engage, in accordance with the terms and conditions set forth herein and in the Assignment of Management Agreement, 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 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 paragraph (i) Section 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 Security Instruments 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 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Management Agreement. Each Borrower and each Operating Lessee shall use commercially reasonable efforts to (ai) The Improvements on cause Manager to manage the Properties are operated Property owned by it in accordance with 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 Property in accordance with the Sub-Management Agreement 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, (iii) 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 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 Sub-Management Agreement on the part of Borrower 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 deliver cause Manager to Lender a true copy of each such notice. Borrower shall not surrender the Management Agreement, consent use commercially reasonable efforts to the assignment by the 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. Borrower hereby assigns to Lender as further security for the payment of the Debt and for enforce the performance and observance of all of the terms, material covenants required to be performed and conditions of this Agreement, all observed by Sub-Manager under the rights, privileges and prerogatives of Borrower to surrender the Sub-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 void and of no force and effect. If any Borrower or any Operating Lessee or Manager shall default in the performance or observance of any material term, covenant or condition of the its Management Agreement or Sub-Management Agreement, as applicable, on the part of such Borrower or such Operating Lessee or Manager, as applicable, to be performed or observed, then, without limiting the generality of Lender’s other rights or remedies under this Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing such Borrower or such Operating Lessee from any of its Obligations hereunder or under its Management Agreement or Manager’s obligations hereunderunder the Sub-Management Agreement, 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 material terms, covenants and conditions of the 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforobserved.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Management Agreement. (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 As of the Management AgreementExecution Date, 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%) shall be in full force and effect and Manager shall have no defenses or claims against Trustor with respect thereto. Any new or subsequent agreements providing for the management and operation of the gross income derived from Westin St. Xxxxxxx Hotel shall be subject to Beneficiary’s approval
(b) The Management Agreement shall be subordinated to the applicable Individual Property. Borrower shall, (i) diligently perform and observe all lien of the terms, covenants Deed of Trust pursuant to an Assignment and conditions Subordination 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 Consent of Manager dated as of the giving date of this Deed of Trust, and further shall be assigned to Beneficiary as additional security for the Loan.
(c) Notwithstanding any notice by Manager provision to Borrower of any default by Borrower the contrary contained herein or in the performance or observance of any of other Loan Documents, the termsTrustor and Operating Lessee may not amend, 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 of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend waive any right under the Management AgreementAgreement without the written consent of Table of Contents Beneficiary, in provided however, without any respectrequirement for consent, either orally or in writing. Borrower hereby assigns Trustor and Operating Lessee may agree 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, nonmaterial 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 to the Management Agreement on and waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect 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 cash management procedures set forth in the Management Agreement on or the part Loan Documents, decrease the cash flow of Borrower 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 be performed add additional items to or observed delete items from such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or words of similar meaning so as to be promptly performed reduce the payments due the Trustor thereunder, change the definition of “debt service amount” or observed on behalf “owner indebtedness”, change the definition of Borrower“net cash flow” or “net operating cash flow”, change the timing of remittances to the end that Trustor or Operating Lessee thereunder, change the rights priority of Borrower indistributions of “net cash flow” to Trustor or Operating Lessee thereunder, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall haveincrease or decrease reserve requirements, 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew change the term of the Management Agreement upon demand by Lender made at or increase any time within one Management Fees (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 as defined 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 this paragraph (iManagement Agreement) shall bear interest at the Default Rate from the date payable under 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforManagement Agreement.
(bd) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Trustor or Operating Lessee may not enter into a new Management Agreement unless approved by Beneficiary in its sole 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementabsolute discretion.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. (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 AgreementBorrowers shall maintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Borrowers’ obligations thereunder and enforce performance of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall, from time to time, obtain from Borrowers shall cause the Manager such certificates to enter into an assignment and subordination of estoppel with respect the management agreement in form satisfactory to compliance by Borrower with Lender (the terms "Subordination of Management Agreement"). The Subordination of Management Agreement shall assign and subordinate the Manager’s interests in the Property and all fees and other rights of the Manager pursuant to the Management Agreement as may be requested by to the rights of Lender. Borrower shall exercise each individual optionUpon an Event of Default, if anyBorrowers shall, to extend or renew the term of the Management Agreement upon demand by Lender at Lender’s request made at any time within one (1) year while such Event of Default continues, terminate, or cause the termination of, the Management Agreement. Borrowers shall not enter into any agreement relating to the management of the last day 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 Borrowers); provided, however, with respect to a new manager such consent may also be conditioned 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 this paragraph Borrowers delivering (i) shall bear interest at a Rating Comfort Letter with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the Default Rate from the date such cost is incurred to the date sense of payment to Lender, clause (ii) shall be deemed to constitute a portion of the Debt, (iiidefined term "Control") shall be secured by the lien of the Security Instruments and the other Loan Documents REIT), and (ivii) evidence satisfactory to Lender (which shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoinginclude, Borrower, upon at the request of Lender, shall terminate a legal non-consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Borrowers, without penalty their shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor 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 any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
Appears in 1 contract
Management Agreement. (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 As of the Management AgreementExecution Date, 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%) shall be in full force and effect and Manager shall have no defenses or claims against Affiliated Guarantor with respect thereto. Any new or subsequent agreements providing for the management and operation of the gross income derived from Westin St. Xxxxxxx Hotel shall be subject to Beneficiary’s approval
(b) The Management Agreement shall be subordinated to the applicable Individual Property. Borrower shall, (i) diligently perform and observe all lien of the terms, covenants Deed of Trust pursuant to an Assignment and conditions Subordination 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 Consent of Manager dated as of the giving date of this Deed of Trust, and further shall be assigned to Beneficiary as additional security for the Guaranteed Obligations.
(c) Notwithstanding any notice by Manager provision to Borrower of any default by Borrower the contrary contained herein or in the performance or observance of any of other Security Documents, the termsAffiliated Guarantor and Operating Lessee may not amend, 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 of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend waive any right under the Management AgreementAgreement without the written consent of Beneficiary, in provided however, without any respectrequirement for consent, either orally or in writing. Borrower hereby assigns Affiliated Guarantor and Operating Lessee may agree 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, nonmaterial 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 to the Management Agreement on and waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect 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 cash management procedures set forth in the Management Agreement on or the part St. Xxxxxxx Loan Documents, decrease the cash flow of Borrower 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 be performed add additional items to or observed delete items from such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or words of similar meaning so as to be promptly performed reduce the payments due the Affiliated Guarantor thereunder, change the definition of “debt service amount” or observed on behalf “owner indebtedness”, change the definition of Borrower“net cash flow” or “net operating cash flow”, change the timing of remittances to the end that Affiliated Guarantor or Operating Lessee thereunder, change the rights priority of Borrower indistributions of “net cash flow” to Affiliated Guarantor or Operating Lessee thereunder, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall haveincrease or decrease reserve requirements, 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew change the term of the Management Agreement upon demand by Lender made at or increase any time within one Management Fees (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 as defined 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 this paragraph (iManagement Agreement) shall bear interest at the Default Rate from the date payable under 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforManagement Agreement.
(bd) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Affiliated Guarantor or Operating Lessee may not enter into a new Management Agreement unless approved by Beneficiary in its sole 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementabsolute discretion.
Appears in 1 contract
Samples: Subordinate Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. Borrower shall (aor shall cause Owner to) 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 Agreementmaintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Owner’s obligations thereunder and enforce performance in all material respects of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by Lenderconditioned or delayed. Borrower shall exercise each individual option(or shall cause Owner to) cause the Manager to enter into consent of manager in form satisfactory to Lender (the “Consent of Manager”). Upon an Event of Default, if anyBorrower shall (or shall cause Owner to), to extend or renew the term of the Management Agreement upon demand by Lender at Lender’s request made at any time within one while such Event of Default continues, terminate, or cause the termination of, the Management Agreement (1subject, however, to Senior Lender’s rights under the Senior Loan Documents). After the date hereof, Borrower shall not (and shall not permit Owner to) year enter into any agreement relating to the management of the last day upon Property with any party without the express written consent of Lender (which any consent shall not be unreasonably withheld to the extent that 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 manager is an affiliate of Borrower); provided, which power however, with respect to a new manager of attorney shall the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be irrevocable and shall be deemed conditioned upon Borrower delivering (or causing Owner to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph deliver) (i) shall bear interest at a Rating Comfort Letter (if required pursuant to a Pooling and Servicing Agreement from and after the Default Rate from occurrence of a Securitization) with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the date such cost is incurred to the date sense of payment to Lender, clause (ii) shall be deemed to constitute a portion of the Debt, (iiidefined term “Control”) shall be secured by the lien of the Security Instruments and the other Loan Documents REIT), and (ivii) evidence satisfactory to Lender (which shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoinginclude, Borrower, upon at the request of Lender, shall terminate a legal non- consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Owner, without penalty Borrower, its shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor new manager, such new manager and Owner, Borrower shall, as a condition of Lender’s consent, execute a consent of manager in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Maguire Properties Inc)
Management Agreement. Borrower shall (aor shall cause Owner to) 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 Agreementmaintain, 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 or cause 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 maintained, the Management Agreement exceed three percent (3%) in full force and effect and timely perform all of Owner’s obligations thereunder and enforce performance in all material respects of all obligations of the gross income derived from the applicable Individual Property. Borrower shallManager thereunder, (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 (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 except as otherwise permitted by the Manager of its interest under Loan Documents, not permit 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. 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 termination 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 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 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 responsibilities under the Management Agreement to a third-party without unless the prior written consent of LenderLender is first obtained, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by Lenderconditioned or delayed. Borrower shall exercise each individual option(or shall cause Owner to) cause the Manager to enter into consent of manager in form satisfactory to Lender (the “Consent of Manager”). Upon an Event of Default, if anyBorrower shall (or shall cause Owner to), to extend or renew the term of the Management Agreement upon demand by Lender at Lender’s request made at any time within one while such Event of Default continues, terminate, or cause the termination of, the Management Agreement (1subject, however, to Senior Lender’s rights under the Senior Loan Documents). After the date hereof, Borrower shall not (and shall not permit Owner to) year enter into any agreement relating to the management of the last day upon Property with any party without the express written consent of Lender (which any consent shall not be unreasonably withheld to the extent that 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 manager is an affiliate of Borrower); provided, which power however, with respect to a new manager of attorney shall the Property (but not a leasing agent or subcontractor appointed in accordance with the Management Agreement) such consent may also be irrevocable and shall be deemed conditioned upon Borrower delivering (or causing Owner to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph deliver) (i) shall bear interest at a Rating Comfort Letter (if required pursuant to a Pooling and Servicing Agreement from and after the Default Rate from occurrence of a Securitization) with respect to such new manager and management agreement (other than a Qualified Manager that is Controlled (in the date such cost is incurred to the date sense of payment to Lender, clause (ii) shall be deemed to constitute a portion of the Debt, (iiidefined term “Control”) shall be secured by the lien of the Security Instruments and the other Loan Documents REIT), and (ivii) evidence satisfactory to Lender (which shall be immediately due and payable upon demand by Lender therefor.
(b) Without limitation of the foregoinginclude, Borrower, upon at the request of Lender, shall terminate a legal non-consolidation opinion acceptable to Lender) that the Management Agreement single purpose nature and replace Managerbankruptcy remoteness of Owner, without penalty Borrower, its shareholders, partners or feemembers, if 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 during Lender consents to the Loan:
(a) Manager shall become insolvent or appointment of a debtor new manager, such new manager and Owner, Borrower shall, as a condition of Lender’s consent, execute a consent of manager in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default the form then used by Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementLender.
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Maguire Properties Inc)
Management Agreement. If the Lessee decides to enter into a management or agency agreement relating to the management or operation of the Facility (a) The Improvements on collectively, the Properties are operated "Management Agreement"), Lessor shall have the right to approve the Management Agreement , any modifications to the Management Agreement affecting the fees, costs or expenses payable or collectible thereunder, and managed as “U-Store-It” self-service storage facilities (any other than the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions of material modification to the Management Agreement, which have been approved by Lender including the management fees and any other items set forth therein. Lessor's approval shall not be unreasonably withheld. The Properties Management Agreement shall provide, among other things, that (other than i) upon termination of this Lease or termination of Lessee's right to possession of 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 Leased Property for any reason whatsoever, the Management Agreement exceed three percent (3%) may be terminated by Lessor without liability for any payment due or to become due to the manager of the gross income derived from Facility (the applicable Individual Property. Borrower shall"Manager"), (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 (ii) promptly notify Lender of the giving of any notice all fees and other amounts payable 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 Lessee to the assignment Manager shall be subordinate on a month to month basis to Rent and other amounts payable by Lessee to Lessor hereunder prior to the Manager existence 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. Borrower hereby assigns to Lender as further security for the payment an Event 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 respectDefault, 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 at all times subordinate to Rent and such other amounts after the occurrence of no force an Event of Default
22.1. Officer's Certificates; Financial Statements; Lessor's Estoppel --------------------------------------------------------------- Certificates and effectCovenants. 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 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 applicable Individual Property at --------------------------
(a) At any time and from time to time for 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 purpose modifications), the date to which the Rent has been paid, whether to the knowledge of taking Lessee there is any such action. If the Manager shall deliver to Lender a copy existing default or Event of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken Default hereunder by Lessor or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall notLessee, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement other information as may be reasonably requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 interestLessor. Any sums expended by Lender such certificate furnished 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 LenderSection may be relied upon by Lessor, (ii) shall be deemed to constitute a portion any lender, any underwriter and any prospective purchaser of the 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 thereforLeased 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 be 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 its 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 Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the 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 modifications), 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 form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly 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 limitation of limiting the foregoing, Borrower, upon the request information shall be sufficient to permit the preparation of Lender, shall terminate a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time Lessee as the Manager may be removedrequired 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, a Qualifying Manager and such material additional third-party costs shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementbe paid or reimbursed by Lessor.
Appears in 1 contract
Management Agreement. (aA) The Improvements on Borrowers shall cause Manager to manage 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 Sites in accordance with 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) Borrowers 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 material 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 (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 each Borrower to be performed and observed and deliver observed, (ii) promptly notify Lender of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Borrowers of its interest any material default under the Management AgreementAgreement of which they are aware, or terminate or cancel and (iii) prior to termination of Manager in accordance with Section 5.11(C), the Borrowers shall renew the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, Agreement prior to each expiration date thereunder 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 accordance with its 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 void and of no force and effect. If Borrower the Borrowers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower the Borrowers to be performed or observed, then, without limiting the generality of Lender’s other rights or remedies under this Loan Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower the Borrowers from any of its their obligations hereunderhereunder 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 or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower the Borrowers to be performed or observed observed. If the Borrowers fail to be promptly performed or observed on behalf of Borrowerrenew the Management Agreement, Lender has the right, but not the obligation, to the end that the rights of Borrower in, to and under renew the Management Agreement within ten (10) Business Days’ of receipt of notice from Manager that the Management Agreement will terminate unless otherwise renewed.
(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 (under a management agreement substantially similar in all material respects to the initial Management Agreement, except that the Management Fee thereunder shall be kept unimpaired and free from default. Lender and any Person designated an amount agreed by Lender shall havethe successor Manager not to exceed 7.5% of Operating Revenues), and are hereby granted, or consent to the right to enter upon the applicable Individual Property at any time and from time to time for the purpose assignment by Manager of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default its interest under the Management Agreement, such notice shall constitute full protection other than to Lender for any action taken or omitted to be taken by Lender in good faithan Acceptable Manager, in reliance thereon. Borrower shall not, 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 shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender. In any case, which consent the Borrowers shall not be unreasonably withhelddeliver to Lender copies of all material modifications, amendments and supplements to the Management Agreement promptly upon execution thereof. Borrower 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, from time to timeas a condition of Lender’s consent, obtain from the Manager such certificates of estoppel or with respect to compliance by Borrower an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the form delivered in connection with the terms closing of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforLoan.
(bC) Without limitation of Lender shall have the foregoing, Borrower, upon the request of Lender, shall right to terminate the Management Agreement and replace Manager, without penalty or feerequire that Manager be replaced with a Person chosen by the Borrowers (or, 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 DefaultDefault 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, (cii) there exists 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 that continues beyond the expiration 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 applicable notice and cure periods. At such time as Person chosen by the Borrowers (or Lender) to be successor Manager will require Rating Agency Confirmation (which Rating Agency Confirmation may not be removed, a Qualifying Manager shall assume management deemed satisfied pursuant to Section 11.13 of the applicable Individual Property pursuant to a Replacement Management Trust Agreement). A replacement Manager who satisfies the foregoing shall be an “Acceptable Manager”.
Appears in 1 contract
Samples: Loan and Security Agreement (American Tower Corp /Ma/)
Management Agreement. (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 As of the Management AgreementExecution Date, 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%) shall be in full force and effect and Manager shall have no defenses or claims against Trustor with respect thereto. Any new or subsequent agreements providing for the management and operation of the gross income derived from Hyatt Regency at Aventine Hotel shall be subject to Beneficiary’s approval
(b) The Management Agreement shall be subordinated to the applicable Individual Property. Borrower shall, (i) diligently perform and observe all lien of the terms, covenants Deed of Trust pursuant to an Assignment and conditions Subordination 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 Consent of Manager dated as of the giving date of this Deed of Trust, and further shall be assigned to MetLife as additional security for the Loan.
(c) Notwithstanding any notice by Manager provision to Borrower of any default by Borrower the contrary contained herein or in the performance or observance of any of other Loan Documents, the termsTrustor and Operating Lessee may not amend, 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 of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend waive any right under the Management AgreementAgreement without the written consent of Beneficiary, in provided however, without any respectrequirement for consent, either orally or in writing. Borrower hereby assigns Trustor and Operating Lessee may agree 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, nonmaterial 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 to the Management Agreement on and waiver of any nonmaterial rights thereunder, including without limitation, any such modification, change, supplement, alteration, amendment or waiver that does not affect 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 cash management procedures set forth in the Management Agreement on or the part Loan Documents, decrease the cash flow of Borrower 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 be performed add additional items to or observed delete items from such definitions, change the definitions of "available cash flow”, “gross operating profit”, “gross revenues” so as to be promptly performed reduce the payments due the Trustor thereunder, change the definition of "debt service ", “owner equity” or observed on behalf “owner remittance amount”, change the timing of Borrower, remittances to the end that Trustor or Operating Lessee thereunder, change the rights priority of Borrower indistributions of “available cash flow” to Trustor or Operating Lessee thereunder, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall haveincrease or decrease reserve requirements, 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew change the term of the Management Agreement upon demand or increase any Management Fees (as defined in the Management Agreement) payable under such Management Agreement.
(d) Notwithstanding the foregoing, Trustor or Operating Lessee may enter into a new Management Agreement approved by Lender made Beneficiary with 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 within one (1) year prior to two years after the Execution Date, the property managers and brands 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 Acceptable Manager listed 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 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 below, provided (x) each such property manager or brand continues to be deemed to constitute a portion controlled by substantially the same Persons Controlling (as defined in Section 10.4 (d)) such property manager or brand as of the DebtExecution Date (or if such manager is a publicly traded company, (iii) shall such manager continues to be secured by the lien of the Security Instruments and the other Loan Documents publicly traded on an established securities market), and (ivy) shall be immediately due and payable upon demand by Lender therefor.
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) Without limitation during such two year period, any Close Affiliate (as defined in Section 10.4(d)) of any of the foregoingforegoing 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, Borrower, upon the request of Lender, shall terminate the Management Agreement and replace Manager, without penalty such Close Affiliate continues to be publicly traded on an established securities market); 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 any other reputable and experienced professional hotel management company (A) which, or a default by Manager under Close Affiliate of which, shall have at least five years' experience in the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of hotel properties substantially similar in size and complexity to the applicable Individual Property pursuant to Property, (B) which, or a Replacement Management AgreementClose Affiliate of which, 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
Samples: Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Management Agreement. (a) The Improvements on Issuers shall cause the Properties are operated and managed as “U-Store-It” self-service storage facilities (other than Manager to manage the Properties set forth on Schedule 4.1.31 attached hereto) under the terms and conditions of Tower Sites in accordance with 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) Issuers 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 material 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 (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 each Issuer to be performed and observed and deliver (ii) promptly notify the Indenture Trustee and the Servicer of any notice to Lender a true copy any of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager Issuers of its interest any material default under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in Agreement of which it is aware. If 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 void and of no force and effect. If Borrower Issuers shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower the Issuers to be performed or observed, then, without limiting the generality of Indenture Trustee’s other rights or remedies under this Indenture or the other provisions of this AgreementTransaction Documents, and without waiving or releasing Borrower the Issuers from any of their obligations hereunder or under the Management Agreement, the Issuers grant the Indenture Trustee or the Servicer on its obligations hereunder, Lender shall have behalf the right, but shall be under no obligationupon prior written notice to the Issuers, to pay any sums and to perform any act or take any action as may be reasonably appropriate to cause all the terms, covenants and such material conditions of the Management Agreement on the part of Borrower the Issuers to be performed or observed observed; provided, however, that neither the Indenture Trustee nor the Servicer shall be under any obligation to be promptly performed pay such sums or observed on behalf of Borrowerperform 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 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 assignment 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 the Manager shall deliver to Lender a copy of any notice sent to Borrower of default its interest under the Management Agreement, such in each case without delivery of prior written 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, each Rating Agency and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lenderthe Servicer; provided, which however, that written consent shall of the Servicer is not be unreasonably withheldrequired to the extent an Acceptable Manager replaces the existing Manager under the existing Management Agreement (other than as modified by any non-material change). Borrower If the Servicer consents to the appointment of 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 Issuers shall, from time to time, obtain from the Manager such certificates of estoppel or with respect to compliance an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the form previously delivered by Borrower with the terms 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 as may be requested by Lender. Borrower shall exercise Agreement.
(d) The Indenture Trustee and the Servicer are each individual option, if any, permitted to extend or renew utilize and in good faith rely upon the term advice of the Management Agreement upon demand by Lender made Manager (or to utilize, at any time within one its own expense (1) year of except to the last day upon which any such option may be exercised, and Borrower hereby extent that a particular expense is 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 provided herein to be coupled with an interest. Any sums expended by Lender pursuant to Advance or an Additional Issuer Expense) other agents or attorneys), in performing certain of its obligations under 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 Security Instruments Indenture and the other Loan Documents Transaction Documents, including, without limitation, Tower Site management, operation, and (iv) maintenance; Tower Site dispositions, releases, terminations, additions, and substitutions; application of funds pursuant to Article V of this Indenture; 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 be immediately due have any liability with respect to utilizing and payable upon demand by Lender therefor.
(b) Without limitation of the foregoing, Borrower, relying upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementdescribed above.
Appears in 1 contract
Management Agreement. (a) The Improvements on CCL shall, and shall cause its Subsidiaries to, cause the Manager (including any replacement manager that is an Acceptable Manager) to manage 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 in accordance with the Management Agreement exceed three percent (3%) of the gross income derived from the applicable Individual Propertyin all material respects. Borrower CCL shall, and shall cause its Subsidiaries to, (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 (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 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. 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 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 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 CCL and each Subsidiary required to be performed and observed and (ii) promptly notify the Trustee of any notice to any of CCL or observed to be promptly performed or observed on behalf its Subsidiaries of Borrower, to the end that the rights of Borrower in, to and 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 be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, have the right to enter remove the Manager and replace such Manager with a Person to be selected by CCL and reasonably acceptable to the 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 applicable Individual Property at earliest to occur of any time one or more of the following events: (i) an Event of Default has occurred and is then continuing, (ii) 30 days after notice from time Trustee to time for the purpose of taking any such action. If CCL if the Manager shall deliver to Lender a copy of any notice sent to Borrower of default has engaged in fraud, gross negligence or willful misconduct arising from or in connection with its performance under the Management Agreement or (iii) the Manager defaults under the Management Agreement, such notice shall constitute full protection default is reasonably likely to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall nothave a Material Adverse Effect, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior such default remains unremedied for 30 days following written consent of Lender, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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 this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred notice 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforManager.
(bc) Without limitation Notwithstanding any provision to the contrary herein, the Trustee shall have no duty or responsibility to monitor the performance of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration and shall not be deemed to have knowledge of any applicable notice aspect of such performance whatsoever unless a Responsible Officer of the Trustee has actual knowledge thereof and cure periodsthe Trustee shall have no obligation to take any action with respect to the Manager, the Management Agreement or the Manager’s performance thereunder unless and until, subject to Section 6.05, the Trustee shall have been directed in writing to do so by the Holders of a majority in principal amount of the outstanding Notes. At such time as In no event shall the Trustee have any obligation to determine whether any default by the Manager may be removed, a Qualifying Manager shall assume management of under the applicable Individual Property pursuant to a Replacement Management Agreement, whether or not known to the Trustee, is reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties Property 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 four percent (34%) of the gross income Gross Income from Operations derived from the applicable Individual Property. Borrower shall, shall (i) 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 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 surrender the Management Agreement, consent to the assignment by the 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 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 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 an 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 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, material 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 on the part of Borrower to be performed or observedobserved beyond applicable notice and cure periods provided therein, 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 applicable Individual 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, however, that Lender shall not take such action unless an Event of Default has occurred and is continuing. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management AgreementAgreement 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 will attempt to resolve its dispute with Manager, then Lender shall refrain from taking any action 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 (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 the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-third party without the prior written consent of Lender, which consent shall will not be unreasonably withheld. Borrower shall, from time to timetime (but not more frequently than once annually), use commercially reasonable efforts to obtain from the 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 exercise each individual option, if any, to extend or renew the term of the 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 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. 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, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Security Instruments 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 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 proceedingproceeding or (d) if at any time Manager has engaged in gross negligence, fraud or willful misconduct. Within thirty (b30) there exists an Event of Default, (c) there exists a default by days after Manager under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be is removed, a Qualifying Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Loan Agreement (Piedmont Office Realty Trust, Inc.)
Management Agreement. Lessor shall have the right to approve or disapprove in advance any manager or proposed manager (aa "Manager") The Improvements on of the Properties are operated Facility as well as any agreement relating to the management or operation of the Facility (a "Management Agreement") by a Manager (provided, however, that Lessor's consent shall not be required with respect to any Manager which is an Affiliate of Lessee) and managed 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 “U-Store-It” self-service storage facilities requiring that Lessee engage a Manager for the Facility. Any Management Agreement (other than whether with a Manager which is an Affiliate or is not an Affiliate of Lessee) must provide that (i) upon termination of this Lease or termination of Lessor's or Lessee's right to possession of the Properties set forth on Schedule 4.1.31 attached heretoLeased Property for any reason, the Management Agreement may be terminated by Lessor without liability for any payment due or to become due to the Manager thereunder; (ii) any management fees shall be 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, continue to perform 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 (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 for a period not to be performed and observed and deliver to Lender a true copy of each exceed ninety (90) days, provided that such notice. Borrower election by Lessor shall not surrender the 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, consent to the assignment by the Manager of its interest under the Management Agreement, Agreement may be amended or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, modified 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 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 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 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 responsibilities under the Management Agreement to a third-party manner without the prior written consent of LenderLessor, which consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from the 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 exercise each individual option, if any, to extend delayed or renew the term of the 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 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 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 Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender thereforconditioned.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate the Management Agreement 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 Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Lease Agreement (Equity Inns Inc)
Management Agreement. (a) The Improvements on As of the Properties are operated date hereof, Owner has not engaged any manager to manage the Property and managed pays no property management fee to any manager. In the event that Owner enters into a Management Agreement with a Manager, Manager and Owner shall, 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 a condition of Lender’s consent, execute a subordination 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 Agreement in a form reasonably acceptable 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, : (ia) diligently 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 terms, covenants and conditions of the Management Agreement, on the part of Borrower required to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its rights thereunder; (iic) promptly notify (or cause Owner to 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 beyond all applicable notice and cure periods under the Management Agreement on 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 part Management Agreement; and (e) cause Owner to promptly enforce in a commercially reasonable manner the performance and observance of Borrower all of the covenants required 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 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. 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 void and of no force and effect. If Borrower Owner shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower Owner to be performed or observedobserved beyond all applicable notice and cure periods, then, without limiting the generality of Lender’s other rights or remedies under this Agreement or the other provisions of this AgreementLoan Documents, and without waiving or releasing Borrower from any of its obligations hereunderhereunder 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 or take any action as may be appropriate to cause all the material terms, covenants and conditions of the Management Agreement on the part of Borrower Owner 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 defaultobserved. 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 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 responsibilities under the Management Agreement to a third-party without the Without Lender’s prior written consent of Lenderconsent, which consent shall not be unreasonably withheld. , conditioned or delayed, Borrower shallshall not permit Owner to: (i) surrender, from time to timeterminate, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of cancel, extend or renew the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, or otherwise replace Manager or enter into any other management agreement (except pursuant to extend Section 5.12.2 hereof); (ii) reduce or renew consent to the reduction of the term of the 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 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 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, Agreement; (iii) shall be secured by increase or consent to the lien increase of the Security Instruments and amount of any charges under the other Loan Documents and Management Agreement; (iv) shall be immediately due otherwise modify, change, supplement, alter or amend in any material respect, or waive or release any of its material rights and payable upon demand by Lender thereforremedies 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) Without limitation Lender acknowledges that, as of the foregoingdate hereof, Borrowerthere 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, upon Borrower acknowledges that Lender reserves the request 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 Lenderthe Property, shall terminate 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 be subject to the prior written approval of the Lender, which approval may be granted or denied in Lender’s sole 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 proceedingabsolute discretion, (bB) there exists an Event that such management company shall not receive a management fee greater than three and one-half percent (3.5%) of DefaultRents, and (cC) there exists to execute (and to cause such management company to execute) a default by Manager under Consent in accordance with the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management AgreementSenior Loan Documents.
Appears in 1 contract
Management Agreement. (a) The Improvements on Tenant shall not, without Landlord's prior written consent, amend or modify 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 provisions of the Management AgreementAgreement which provide (i) that, which have been approved by Lender including from and after the management fees occurrence of any Default or Event of Default, all amounts due from Tenant to the Manager shall be subordinate to all amounts due from Tenant to Landlord, (ii) for operation of the Leased Property under the "Wyndham" name, (iii) that Wyndham, the Manager 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” selftheir Affiliated Persons are prohibited from operating, managing or franchising another full-service storage facilities Wyndham Hotel (as opposed to Wyndham Garden or under such other tradename resort hotels) 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 trademark as may be approved by Lender. In no event shall the management fees permit any action under the Management Agreement exceed three percent (3%) of the gross income derived from the applicable Individual Property. Borrower shallwhich might have a material adverse effect on Landlord, (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 (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 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. 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 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 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 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 responsibilities under the Management Agreement to a third-party without the prior written consent of LenderLandlord; provided, which however, that Landlord's consent shall not be unreasonably withheld. Borrower shall, from time to time, obtain from required in connection with any assignment of the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of Manager's rights under the Management Agreement to (x) any Affiliated Person of the Manager having the full power, right and authority to provide all services and organizational expertise as may be requested contemplated and required by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at or (y) any time within one Person (1including, but not limited to, any Lending Institution) year who acquires all or substantially all of the last day upon which any management contracts of the Manager, provided that, in either such option may be exercisedcase, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact the Leased Property will retain the right to exercise any such option in use the name "Wyndham" name. In the event 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 assignment pursuant to this paragraph clause (y) preceding, provided that the successor Manager (i) shall bear interest at assumes, in writing all obligations of the Default Rate from Manager under the date such cost is incurred to Management Agreement, and (ii) has a Tangible Net Worth, as of the date of payment assignment, equal to Lenderthe greater of the Tangible Net Worth of the Manager as of the date of this Agreement, (ii) and the Tangible Net Worth of the Manager as of the date of such assignment, the Manager shall be deemed released from all liabilities arising under the Management Agreement from and after the effective date of such assignment. Tenant shall not agree to constitute a portion of any change in the DebtManager (except as provided in the preceding sentences), to any change in the Management Agreement (iii) shall be secured by except as provided in 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 foregoingpreceding sentences), Borrower, upon the request of Lender, shall terminate the Management Agreement and replace Manageror 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, without penalty or feehowever, if at any time during that the Loan:
(a) Manager shall become insolvent or may grant a debtor security interest in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a default by Manager its right to receive payments under the Management Agreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementwithout Landlord's prior written approval.
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