Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to surrender the Management Agreement, consent to the assignment by the Manager of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding the foregoing, Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 permit Lender, upon five (5) days prior notice to Borrower, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to have, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which any such option may be exercised. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor. (b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality Corp)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event If Borrower shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment engage a Manager to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from manage the Property). , Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the any Management Agreement, if any, on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the any such Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the any such Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender’s prior written consent, Borrower shall cause Operating Tenant to not 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, Agreement or modify, change, supplement, alter or amend the any Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender any Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend any Management Agreement with a Qualified Manager. Subject to in any respect, and any such surrender of any Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of any Management Agreement without the rights prior consent of Mortgage Lender, if Mortgage Lender shall be void and of no force and effect.
(b) If Borrower or Operating Tenant 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 or Operating Tenant to be performed or observedobserved and fails to remedy such default within any applicable cure period set forth in the Management Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Borrower Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 any Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the any 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 person designated by Lender to 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 any Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant 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. None of Borrower, Mortgage .
(c) Borrower or Operating Tenant shall, or permit, the shall notify Lender if any Manager to, sub-contract contracts to a third party or an affiliate 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use commercially reasonable efforts to obtain from the any Manager under any Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the such Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the any Management Agreement upon demand by Lender made at any time within or prior to one (1) year of the period within 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 Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bd) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate the Management Agreement and replace the Manager, without penalty or fee, if at any time during the Loan: If (a) the any Manager shall become insolvent or a debtor in (i) any involuntary bankruptcy or insolvency proceeding that is not dismissed within ninety (90) days of the filing thereof, or (ii) any voluntary bankruptcy or insolvency proceeding, ; (b) there exists an Event of Default, Default which remains uncured and is continuing; (c) the Debt Service Coverage Ratio shall be less than 1.10 to 1.00; (d) there exists a material default by any Manager beyond all applicable notice and cure periods under the any Management Agreement. At ; (e) there occurs any fraud, gross negligence, willful misconduct or misappropriation of funds relating to the Property by any Manager; or (f) there occurs any change in Control of Manager, then Lender, at its option, may require Borrower to engage a manager or replace any existing Manager with a new manager (the “New Manager”) to manage the Property, which such time as the New Manager may shall be removed, a Qualified Manager. New Manager shall assume be engaged by Borrower pursuant to a written management agreement and is otherwise satisfactory to Lender in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the form then used by Lender. Without limitation of the foregoing, if required by Lender, Borrower shall, as a condition precedent to Borrower’s engagement of such New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and management agreement.
(e) In the event that the Borrower should ever elect to employ an affiliate or third party management company for the management of the applicable Individual Property pursuant Property, the Borrower agrees (A) that such management company must be a Qualified Manager, 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 reasonable discretion, (B) that such management company shall receive a Replacement management fee reasonably acceptable to Lender, and (C) to execute (and to cause such management company to execute) an Assignment of Management Agreement.
(f) To the extent that any Manager is an Affiliated Manager, Borrower’s engagement of a 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 2 contracts
Samples: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Management Agreement. (a) The Improvements on the Properties Property are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to the Security Instrument and this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall, or shall cause Mortgage Borrower to cause the Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to shall 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. Borrower and Operating Tenant hereby assign 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 and Operating Tenant to surrender the Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management 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. Notwithstanding the foregoing, Mortgage Borrower or Operating Tenant may terminate a the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, but shall be under no obligation, upon five (5) days prior notice to Borrower, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Neither Borrower or nor Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause and Operating Tenant toshall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to 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 or prior to the period within which any such option may be exercised, and Borrower and Operating Tenant hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower and Operating Tenant, 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 Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the PropertiesProperty, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause the Operating Tenant to, 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to the related Security Instrument and this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall, or shall cause Mortgage Borrower to cause the Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to shall 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. Borrower and Operating Tenant hereby assign 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 and Operating Tenant to surrender the Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management 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. Notwithstanding the foregoing, Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, but shall be under no obligation, upon five (5) days prior notice to Borrower, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Neither Borrower or nor Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause and Operating Tenant toshall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to 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 or prior to the period within which any such option may be exercised, and Borrower and Operating Tenant hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower and Operating Tenant, 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Mezzanine Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause the Operating Tenant to, 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Management Agreement. (a) The Improvements on the Properties Property are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three two and one-half percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (32.5%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to 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. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement provided that 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 or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default beyond any applicable notice and cure period in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of BorrowerBorrower shall not, Mortgage Borrower or Operating Tenant shall, or permit, the and shall not permit 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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 Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified 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 under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender Administrative Agent of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice. Neither Borrower nor Mortgage Without Requisite Lenders’ prior written consent (which must include the consent of any Lender then acting as Administrative Agent), such consent not to be unreasonably withheld, conditioned or delayed, Borrower shall cause Operating Tenant 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, Agreement as it relates to each Individual Property or modify, change, supplement, alter or amend the Management AgreementAgreement as it relates to each Individual Property, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Administrative Agent, for the foregoingbenefit of Lenders, Mortgage 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 or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement as it relates to each Individual Property 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 consents required pursuant to this Section 4.15(a) shall be void and of no force and effect; provided that, Borrower shall not be required to obtain Administrative Agent’s consent with a Qualified Manager. Subject respect to any non-material changes, supplements, alterations or amendments to the rights of Mortgage Lender, if Mortgage Management Agreement. If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Administrative Agent shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender Administrative Agent and any Person designated by Lender Administrative Agent shall have, and are hereby granted, subject to havethe terms and conditions of, and the rights of Tenants, under the Leases (and any applicable SNDA), 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 Administrative Agent a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender Administrative Agent and Lenders for any action taken or omitted to be taken by Administrative Agent or any Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall notify Administrative Agent if Manager to, sub-contract contracts to a third party or an affiliate any or all of its management responsibilities under the Management Agreement with respect to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheldeach Individual Property. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use its commercially reasonable efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in Administrative Agent on behalf of any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Administrative Agent (as directed by Requisite Lenders (which must include any Lender then acting as Administrative Agent)) made at any time within or prior to one (1) year of the period within last day upon which any such option may be exercised, and, should Borrower so fail to exercise such option, Borrower hereby expressly authorizes and appoints Administrative Agent 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 Administrative Agent pursuant to this paragraph (i) shall bear interest at the Default Interest Rate from the date such cost is incurred to the date of payment to Lender, (ii) Administrative Agent shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Administrative Agent or any Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon if any Individual Property is removed from the request application of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate the Management Agreement pursuant to the Assignment of Management Agreement or for any other reason, then Requisite Lenders (which must include the approval of any Lender then acting as Administrative Agent), at their option, may require 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 applicable Individual Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Borrower pursuant to a written management agreement that complies with the terms hereof and of the Assignment of Management Agreement and is otherwise satisfactory to Requisite Lenders (which must include any Lender then acting as Administrative Agent) in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the form then used by Administrative Agent. To the extent that such New Manager is an Affiliated Manager, without penalty or feeBorrower’s engagement of such New Manager shall, if at any time during required by Administrative Agent, be subject to Borrower’s delivery to Administrative Agent, for the Loan: (a) the benefit of Lenders, of a New Non-Consolidation Opinion with respect to such New Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, and new management agreement.
(c) there exists a material default by The parties hereto agree that, as of the date hereof, Manager under (Xxxx Realty Advisors, Inc., an Arizona corporation) is an Affiliated Manager. Notwithstanding anything to the contrary set forth in Section 4.15(a) above, Borrower and/or Guarantor may, without Administrative Agent’s or any Lender’s consent, remove the Property from the Management Agreement. At such time as Agreement provided the Manager may be removed, Property remains managed at all times by a Qualified Manager and the provisions of Section 4.15(b) are otherwise satisfied. Further, in the event that Manager (Xxxx Realty Advisors, Inc., an Arizona corporation) is no longer an Affiliated Manager, then Borrower and/or Guarantor shall assume management replace Manager with a Qualified Manager and otherwise satisfy the provisions of the applicable Individual Property pursuant to a Replacement Management AgreementSection 4.15(b).
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, Borrower shall cause Operating Tenant 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 AgreementAgreement as it relates to the Property, or modify, change, supplement, alter or amend the Management AgreementAgreement as it relates to the Property, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject as it relates to the rights Property in any respect, and any such surrender of Mortgage the Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement without the consents required pursuant to this Section 4.15(a) shall be void and of no force and effect; provided that, Borrower shall not be required to obtain Lender's consent with respect to any non-material changes, if Mortgage supplements, alterations or amendments to the Management Agreement. If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender shall have, and are hereby granted, subject to havethe terms and conditions of, and the rights of Tenants under the Leases, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall 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 with respect to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheldProperty. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use its commercially reasonable efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within last day upon which any such option may be exercised, and, should Borrower so fail to exercise such option, 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 Applicable Interest Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrowerif the Property is removed from the application of the Management Agreement pursuant to the Assignment of Management Agreement or for any other reason, upon the request of then Lender, at its option, may require Borrower to engage, in accordance with the terms and conditions set forth in the Assignment of Management Agreement, a new manager (the “New Manager”) to manage the Property, which such New Manager shall cause Mortgage be a Qualified Manager. New Manager shall be engaged by Borrower topursuant to a written management agreement that complies with the terms hereof and of the Assignment of Management Agreement and is otherwise satisfactory to Lender in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the form then used by Lender. Without limitation of the foregoing, or cause Operating Tenant toif required by Lender, Borrower shall, as a condition precedent to Borrower's engagement of such New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and new management agreement. To the extent that such New Manager is an Affiliated Manager, Borrower's engagement of such New Manager shall, if required by Lender, be subject to Borrower's delivery to Lender of a New Non-Consolidation Opinion.
(c) Notwithstanding anything to the contrary set forth in Section 4.15(a) above, Borrower may, without Lender's consent, terminate the Management Agreement and replace provided the Manager, without penalty or fee, if Property remains managed at any time during the Loan: (a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default all times by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager and the provisions of Section 4.15(b) are otherwise satisfied. In the event that Xxxx Realty Advisors, Inc. is no longer an Affiliated Manager, then Borrower and/or Guarantor shall assume management replace Manager with a Qualified Manager and otherwise satisfy the provisions of the applicable Individual Property pursuant to a Replacement Management AgreementSection 4.15(b).
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three five percent (35%) of the gross income derived Gross Income from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property)Operations. Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to 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. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement provided that 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 written consent of Lender shall be void and of no force and effect. If Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of BorrowerBorrower shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management AgreementAgreement or (d) the Debt Service Coverage Ratio is less than 1.20 to 1.0. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Loan Agreement (Netreit, Inc.)
Management Agreement. (a) The Improvements on the Properties -------------------- are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Agreement or Replacement Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property)as applicable. Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe in all material respects all of the material terms, covenants and conditions of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the material rights of Mortgage Borrower and Operating Tenant under the Management Agreement or Replacement Management Agreement, if applicable and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any material default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement or Replacement Management Agreement, if applicable on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to not surrender the Management Agreement or Replacement Management Agreement, if applicable, consent to the assignment by the Manager of its interest under the Management Agreement (except as provided herein) or Replacement Management Agreement, if applicable, or terminate or cancel the Management Agreement or Replacement Management Agreement, if applicable, or modify, change, supplement, alter or amend the Management Agreement or Replacement Management Agreement, if applicable, in any material respect, either orally or in writing, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement, if applicable, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject to or Replacement Management Agreement, if applicable, in any respect, and any such surrender of the rights Management Agreement or Replacement Management Agreement, if applicable, or termination, cancellation, modification, change, supplement, alteration or amendment of Mortgage the Management Agreement or Replacement Management Agreement, if applicable, without the prior consent of Lender, if Mortgage which consent shall not be unreasonably withheld, conditioned or delayed, shall be void and of no force and effect. If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement or Replacement Management Agreement, if applicable, 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 person designated by Lender to shall have, and are hereby granted, the right upon reasonable advance written notice to Borrower to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of material default under the Management Agreement or Replacement Management Agreement, if applicable, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereonthereon unless such action constitutes the willful misconduct or gross negligence of Lender or Lender's agent. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, shall notify Lender if the Manager to, sub-contract contracts to a third party any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lenderor Replacement Management Agreement, which consent shall not be unreasonably withheldif applicable. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement or Replacement Management Agreement, if applicable, as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement or Replacement Management Agreement, if applicable upon demand by Lender made at any time within or prior to one (1) year of the period within 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified 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 under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrueProperty. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower Pledgor shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Pledgor shall cause Mortgage Borrower shall cause Operating Tenant 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 material respect, either orally or in writingwriting without the Lender’s prior written consent, which consent shall not be unreasonably, withheld, conditioned or delayed. Notwithstanding In the foregoingevent that the Management Agreement expires or is terminated (without limiting any obligation of Pledgor to obtain Lender’s consent to any termination or modification of the Management Agreement in accordance with the terms and provisions of this Agreement), Pledgor shall cause Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters to promptly enter into a Replacement Management Agreement with a Manager or another Qualified Manager, as applicable. Subject to the rights of Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender, Mezzanine C Lender and Mezzanine D Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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, Borrower Pledgor shall permit Lender, upon five (5) days prior notice to Borrower, Lender to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower Pledgor shall cause Lender and any Person designated by Lender to have, 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 or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Pledgor shall cause Mortgage Borrower or Operating Tenant shallto not, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use commercially reasonable efforts to obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which any such option may be exercisedLender. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, BorrowerPledgor, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrueProperty. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower Pledgor shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Pledgor shall cause Mortgage Borrower shall cause Operating Tenant 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 material respect, either orally or in writingwriting without the Lender’s prior written consent, which consent shall not be unreasonably, withheld, conditioned or delayed. Notwithstanding In the foregoingevent that the Management Agreement expires or is terminated (without limiting any obligation of Pledgor to obtain Lender’s consent to any termination or modification of the Management Agreement in accordance with the terms and provisions of this Agreement), Pledgor shall cause Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters to promptly enter into a Replacement Management Agreement with a Manager or another Qualified Manager, as applicable. Subject to the rights of Mortgage Lender, Mezzanine A Lender and Mezzanine B Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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, Borrower Pledgor shall permit Lender, upon five (5) days prior notice to Borrower, Lender to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower Pledgor shall cause Lender and any Person designated by Lender to have, 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 or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Pledgor shall cause Mortgage Borrower or Operating Tenant shallto not, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use commercially reasonable efforts to obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which any such option may be exercisedLender. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, BorrowerPledgor, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three (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 Property and (excluding any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under which are subordinate to the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the PropertyLoan). Borrower shall cause Mortgage Borrower to (or shall cause Operating Tenant to Lessee to)
(i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant Lessee under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant Lessee of any default by Mortgage Borrower or Operating Tenant Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower Operating Lessee shall cause Operating Tenant to 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. Notwithstanding Borrower hereby assigns (and Borrower shall cause Operating Lessee to assign) to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower and/or Operating Lessee to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management 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 provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to in any material respect, without the rights prior consent of Mortgage Lender, if Mortgage Borrower or shall be void and of no force and effect. If Operating Tenant Lessee shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant Lessee to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, Lessee to the end that the rights of Mortgage Borrower or Operating Tenant Lessee 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 by written notice to Borrower 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 Mortgage Borrower or and/or Operating Tenant 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. None of BorrowerBorrower and Operating Lessee shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the cause Operating Lessee to request of Manager and deliver to Lender upon receipt such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant Lessee with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower and/or Operating Lessee shall cause Operating Tenant 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 or prior to the period within which extent required to continue it in full force and effect until after the Maturity Date, and Borrower hereby authorizes and appoints (and shall cause Operating Lessee to authorize and appoint) Lender their attorney-in-fact to exercise any such option may in the name of and upon behalf of Borrower and/or Operating Lessee, which power of attorney shall be exercisedirrevocable 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified 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 under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe in all material respects all of the material terms, covenants and conditions of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the material rights of Mortgage Borrower and Operating Tenant under the Management Agreement or Replacement Management Agreement, if applicable and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any material default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement or Replacement Management Agreement, if applicable on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to not surrender the Management Agreement or Replacement Management Agreement, if applicable, consent to the assignment by the Manager of its interest under the Management Agreement (except as provided herein) or Replacement Management Agreement, if applicable, or terminate or cancel the Management Agreement or Replacement Management Agreement, if applicable, or modify, change, supplement, alter or amend the Management Agreement or Replacement Management Agreement, if applicable, in any material respect, either orally or in writing, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement, if applicable, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject to or Replacement Management Agreement, if applicable, in any respect, and any such surrender of the rights Management Agreement or Replacement Management Agreement, if applicable, or termination, cancellation, modification, change, supplement, alteration or amendment of Mortgage the Management Agreement or Replacement Management Agreement, if applicable, without the prior consent of Lender, if Mortgage which consent shall not be unreasonably withheld, conditioned or delayed, shall be void and of no force and effect. If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant 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 Lenders shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement or Replacement Management Agreement, if applicable, 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 person designated by Lender to shall have, and are hereby granted, the right upon reasonable advance written notice to Borrower to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of material default under the Management Agreement or Replacement Management Agreement, if applicable, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereonthereon unless such action constitutes the willful misconduct or gross negligence of Lender or Lender's agent. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, shall notify Lender if the Manager to, sub-contract contracts to a third party any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lenderor Replacement Management Agreement, which consent shall not be unreasonably withheldif applicable. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement or Replacement Management Agreement, if applicable, as may be reasonably requested by Lender (which requests shall be made no more frequently than once to the extent provided for in any consecutive twelve month period unless such request the Management Agreement or Replacement Management Agreement if the Manager is made in connection with a Securitization)not an Affiliate of Borrower. Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement or Replacement Management Agreement, if applicable upon demand by Lender made at any time within or prior to one (1) year of the period within 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate the Management Agreement or Replacement Management Agreement, if applicable 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) provided, the Manager is an Affiliated Manager, (1) there exists a non-monetary Event of Default which remains uncured for at least thirty (30) days following written notice from Lender to Borrower of such non-monetary Event of Default (provided, however, such thirty day notice and cure period is solely for the purpose of terminating the Management Agreement and Lender reserves all rights it has upon an Event of Default pursuant to Article 8 of this Agreement including, without limitation, a foreclosure of the Security Instruments), or (2) there exists a monetary Event of Default, (c) there exists a material default beyond all applicable notice and grace periods by Manager under the Management Agreement or Replacement Management Agreement, if applicable. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
(c) In the case of a Condominium Property, the Condominium is managed and operated under the terms and conditions of the Condominium Management Agreement. If at any time during the term of the Loan, (i) the Condominium Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, or (ii) a material default by the Condominium Manager under the Condominium Management Agreement occurs and continues beyond the expiration of any applicable cure period, Borrower, at the request of Lender to the extent Borrower has the authority to do so under the Condominium Documents and/or the Condominium Management Agreement, shall direct the Condominium Board to terminate the Condominium Management Agreement and retain a Qualified Manager to manage the Condominium.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender’s prior written consent, Borrower shall cause not permit Operating Tenant to 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 material respect, either orally or in writing. Notwithstanding , and any such surrender of the foregoing, Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement with a Qualified Manager. Subject to without the rights prior consent of Mortgage Lender, if Mortgage Borrower or Lender shall be void and of no force and effect.
(b) If Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage .
(c) Borrower or Operating Tenant shall, or permit, the shall 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, or cause Mortgage Borrower to cause Operating Tenant to, 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 Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within last day upon which any such option may be exercised. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bd) Without limitation of the foregoing, Borrowerif the Management Agreement is terminated pursuant to the Assignment of Management Agreement or for any other reason, upon the request of then Lender, shall cause Mortgage at its option, may require Borrower to, or to cause Operating Tenant toto engage, terminate in accordance with the terms and conditions set forth in the Assignment of Management Agreement, a new manager (the “New Manager”) to manage the Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Operating Tenant pursuant to a written management agreement that complies with the terms hereof and of the Assignment of Management Agreement and replace the is otherwise satisfactory to Lender in all respects. New Manager, without penalty or fee, if at any time during Operating Tenant and Borrower shall execute an Assignment of Management Agreement in the Loan: (a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default form then used by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified 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 under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant to be performed performed, observed and observed enforced to the end that all things shall be done which are reasonably necessary to keep unimpaired the material rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the material terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender’s prior written consent (which consent shall not be unreasonably withheld or delayed), Borrower shall cause Operating Tenant 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, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject to in any material respect, and any such surrender of the rights Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of Mortgage Lender, if Mortgage the Management Agreement without the prior consent of Lender shall be void and of no force and effect.
(b) If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage .
(c) Borrower or Operating Tenant shall, or permit, the shall 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use its commercially reasonable efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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 Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bd) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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 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) the which such New Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager. New Manager shall assume management of the applicable Individual Property 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. Without limitation of the foregoing, if required by Lender, Borrower shall, as a condition precedent to Borrower’s engagement of such New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and management agreement.
(e) Any management fees payable under a Management Agreement shall not exceed four percent (4.0%) of the total revenue of the Property for the period for which such fees are to be paid.
Appears in 1 contract
Samples: Loan Agreement (Gaia, Inc)
Management Agreement. (a) The Improvements on On the Properties are operated under Closing Date, no Property is managed by any Person other than Borrower and no separate management agreement exists with respect to any Individual Property. Borrower shall not enter into a management agreement with respect to any Property that is not a Management Agreement as defined herein (which, for the avoidance of doubt, shall include the delivery by Borrower to Lender of an Assignment of Management Agreement). If Borrower shall enter into a Management Agreement, then the terms and conditions of the this Section 5.1.18 shall apply to such Management Agreement. .
(b) In no event shall the base management fees under the Management Agreement exceed three two percent (32%) of the gross income derived Gross Income from Operations with respect to the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Properties to which such Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property)relates. Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to 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. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement provided that 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 written consent of Lender shall be void and of no force and effect. If Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of BorrowerBorrower shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bc) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate the any 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 default by Manager under the such Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement. Following the occurrence and during the continuance of an Event of Default and the Debt has been declared due and payable, if the Properties or any Individual Property is self-managed by Borrower, Lender shall have the right to cause Borrower to appoint a Qualified Manager to assume management of the applicable Individual Property pursuant to a Management Agreement.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three (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 Property and (excluding any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under which are subordinate to the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the PropertyLoan). Borrower shall cause Mortgage Borrower to (or shall cause Operating Tenant to Lessee to)
(i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant Lessee under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant Lessee of any default by Mortgage Borrower or Operating Tenant Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower Operating Lessee shall cause Operating Tenant to 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. Notwithstanding Borrower hereby assigns (and Borrower shall cause Operating Lessee to assign) to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower and/or Operating Lessee to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management 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 provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to in any material respect, without the rights prior consent of Mortgage Lender, if Mortgage Borrower or shall be void and of no force and effect. If Operating Tenant Lessee shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant Lessee to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, Lessee to the end that the rights of Mortgage Borrower or Operating Tenant Lessee 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 by written notice to Borrower 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 Mortgage Borrower or and/or Operating Tenant 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. None of BorrowerBorrower and Operating Lessee shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the cause Operating Lessee to request of Manager and deliver to Lender upon receipt such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant Lessee with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower and/or Operating Lessee shall cause Operating Tenant 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 or prior to the period within which extent required to continue it in full force and effect until after the Maturity Date, and Borrower hereby authorizes and appoints (and shall cause Operating Lessee to authorize and appoint) Lender their attorney-in-fact to exercise any such option may in the name of and upon behalf of Borrower and/or Operating Lessee, which power of attorney shall be exercisedirrevocable 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(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 Assignment of Management Agreement, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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 material an event of default by Manager under the Management Agreement. At such time as the Manager may be removedall times, a Qualified Manager shall assume management of the applicable Individual manage each Property pursuant to the Management Agreement or a Replacement Management Agreement, as applicable.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, Borrower shall cause Operating Tenant 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, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Managerin 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. Subject to the rights of Mortgage Lender, if Mortgage If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall 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, or cause Mortgage Borrower to cause Operating Tenant to, 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 Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within last day upon which any such option may be exercised. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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 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) the which such New Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager. New Manager shall assume management of the applicable Individual Property 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.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York Recovery Reit Inc)
Management Agreement. Borrower shall (aor shall cause Operating Tenant to) The Improvements on (i) cause the Properties are operated under the terms and conditions of Property to be managed pursuant to the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent ; (3%ii) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently promptly perform and observe in all material respects all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant required to be performed and observed to by it under the end that Management Agreement and do all things shall be done which are necessary to preserve and to keep unimpaired its rights thereunder; (iii) promptly notify Lender of any material default under the rights Management Agreement of Mortgage which it is aware; (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, and property improvement plan and any other material written notice, report and estimate received by Borrower and or Operating Tenant under the Management Agreement Agreement; and (iiv) promptly notify Lender enforce the performance and observance by Manager of all of the giving of any notice covenants required to be performed and observed by Manager to Mortgage under the Management Agreement. Without Lender’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed), neither Borrower or nor Operating Tenant of any default by Mortgage Borrower shall (a) surrender, terminate, cancel, extend or Operating Tenant renew the Management Agreement (other than extensions or renewals pursuant to the express renewal/extension provisions set forth in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part same terms and conditions set forth therein (as in effect on the date hereof, or as hereinafter amended or modified in accordance with the terms and conditions set forth in this Agreement)) or otherwise replace the Manager or enter into any other management agreement (except pursuant to Section 5.12.2); (b) reduce or consent to the reduction of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy the term of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to surrender the Management Agreement, ; (c) increase or consent to the assignment by increase of the Manager amount of its interest any charges under the Management Agreement, or terminate or cancel the Management Agreement, or ; (d) otherwise modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding waive or release any of its material rights and remedies under, the foregoing, Mortgage Management Agreement; or (e) suffer or permit the occurrence and continuance of a default by Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of beyond any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 permit Lender, upon five (5) days prior notice to Borrower, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and applicable cure period under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no (or any successor management agreement) if such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to have, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If default permits the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which any such option may be exercised. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume successor management of the applicable Individual Property pursuant to a Replacement Management Agreementagreement).
Appears in 1 contract
Samples: Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed (I) with respect to the Properties managed by Intercontinental Hotels Group Resources, Inc., successor to Bristol Management L.P. (“IHG”), the sum of (x) five percent (5%) of total room revenue and (y) two percent (2%) of total revenue; provided, however, IHG 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 IHG, three percent (3%) of the gross income derived from the Property and (excluding any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under which are subordinate to the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the PropertyLoan). Borrower Operating Lessee shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant Lessee under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant Lessee of any default by Mortgage Borrower or Operating Tenant Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower Operating Lessee shall cause Operating Tenant 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 material respect, either orally or in writing. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management 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 provided that Borrower in any material respect, without the prior consent of Lender, shall be void and of no force and effect. Any such proposed modification, change, supplement, alteration or Operating Tenant simultaneously enters into a Replacement amendment of the Management Agreement submitted to Lender for approval shall be deemed approved if (i) Borrower delivers to Lender a written request for such approval marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER. FAILURE TO RESPOND SHALL BE DEEMED AN APPROVAL” and the envelope containing the request is marked “PRIORITY”; and (ii) Lender shall have failed to notify Borrower of its approval or disapproval within such fifteen (15) Business Days following Lender’s receipt of Borrower’s written request together with such proposed modification, change, supplement, alteration or amendment of the Management Agreement, and any and all other information and documentation relating thereto reasonably required by Lender to reach a decision. In no event shall Lender be deemed to have approved (1) a surrender, termination or cancellation of the Management Agreement, (2) any change having a material adverse effect on Borrower’s costs or obligations under the Management Agreement, or (3) or a new management agreement with a Qualified Managernew property manager. Subject Upon Borrower’s request, Lender shall deliver to Borrower a reasonably detailed description of the rights of Mortgage Lender, if Mortgage Borrower or reasons for any disapprovals under this Section 5.1.18.
(b) If Operating Tenant Lessee shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed or observed, after expiration of any applicable notice and cure periods provided in the Management Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Borrower Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant Lessee to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, Lessee to the end that the rights of Mortgage Borrower or Operating Tenant Lessee 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 actiondefault in all material respects. Borrower shall cause Lender and any Person designated by Lender by written notice to Borrower 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of BorrowerOperating Lessee shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, delayed or conditioned. Borrower shall, or cause Mortgage Borrower Operating Lessee shall request of Manager and deliver to cause Operating Tenant to, from time to time, obtain from the Manager Lender upon receipt such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant Lessee with the terms of the Management Agreement as may be reasonably requested by Lender (which requests Lender. Operating Lessee shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which extent required to continue it in full force and effect until after the Maturity Date, and Operating Lessee hereby authorizes and appoints Lender its attorney-in-fact to exercise any such option may in the name of and upon behalf of Operating Lessee, which power of attorney shall be exercisedirrevocable 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bc) Without limitation of the foregoing, Borrowerthe applicable Borrower shall, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant toLender and in accordance with the provisions of the applicable Assignment of Management Agreement, terminate the Management Agreement and replace the Manager, without penalty or feefee payable by Borrower or Lender, if at any time during the Loan: (ai) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, proceeding (bii) there exists an Event of Default, except that the requirements of this Section 5.1.18(c)(ii) shall not apply, unless an event of default under such Management Agreement shall simultaneously have occurred and be continuing or (ciii) there exists a material an event of default by Manager under the Management Agreement. At , except that the requirements of this Section 5.1.18(c)(iii) shall not apply in the event each and all of the following conditions shall be satisfied (1) the applicable Borrower shall be diligently prosecuting the resolution of such time as default in a commercially reasonable manner, (2) Lender shall receive copies of all notices and correspondence sent and/or received by the Manager may applicable Borrower with respect to such default, (3) no Event of Default exists and is continuing and (4) there shall be removedno material adverse affect to the condition (financial or otherwise) or business of Borrower or the condition, a Qualified Manager shall assume management ownership or value of the applicable Individual Property pursuant to a Replacement Management AgreementProperty.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender Administrative Agent of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice. Neither Borrower nor Mortgage Without Requisite Lenders’ prior written consent (which must include the consent of any Lender then acting as Administrative Agent), such consent not to be unreasonably withheld, conditioned or delayed, Borrower shall cause Operating Tenant 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, Agreement as it relates to the Property or modify, change, supplement, alter or amend the Management AgreementAgreement as it relates to the Property, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Administrative Agent, for the foregoingbenefit of Lenders, Mortgage 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 or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject as it relates to the rights Property in any respect, and any such surrender of Mortgage Lenderthe Management Agreement or termination, if Mortgage cancellation, modification, change, supplement, alteration or amendment of the Management Agreement without the consents required pursuant to this Section 4.15(a) shall be void and of no force and effect; provided that, Borrower shall not be required to obtain Administrative Agent’s consent with respect to any non-material changes, supplements, alterations or Operating Tenant amendments to the Management Agreement. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Administrative Agent shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender Administrative Agent and any Person designated by Lender Administrative Agent shall have, and are hereby granted, subject to havethe terms and conditions of, and the rights of Tenants, under the Leases (and any applicable SNDA), 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 Administrative Agent a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender Administrative Agent and Lenders for any action taken or omitted to be taken by Administrative Agent or any Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall notify Administrative Agent if Manager to, sub-contract contracts to a third party or an affiliate any or all of its management responsibilities under the Management Agreement with respect to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheldProperty. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use its commercially reasonable efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in Administrative Agent on behalf of any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Administrative Agent (as directed by Requisite Lenders (which must include any Lender then acting as Administrative Agent)) made at any time within or prior to one (1) year of the period within last day upon which any such option may be exercised, and, should Borrower so fail to exercise such option, Borrower hereby expressly authorizes and appoints Administrative Agent 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 Administrative Agent pursuant to this paragraph (i) shall bear interest at the Default Interest Rate from the date such cost is incurred to the date of payment to Lender, (ii) Administrative Agent shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Administrative Agent or any Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon if the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate Property is removed from the Management Agreement pursuant to the Assignment of Management Agreement or for any other reason, then Requisite Lenders (which must include the approval of any Lender then acting as Administrative Agent), at their option, may require 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, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Borrower pursuant to a written management agreement that complies with the terms hereof and of the Assignment of Management Agreement and is otherwise satisfactory to Requisite Lenders (which must include any Lender then acting as Administrative Agent) in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the form then used by Administrative Agent. To the extent that such New Manager is an Affiliated Manager, without penalty or feeBorrower’s engagement of such New Manager shall, if at any time during required by Administrative Agent, be subject to Borrower’s delivery to Administrative Agent, for the Loan: (a) the benefit of Lenders, of a New Non-Consolidation Opinion with respect to such New Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, and new management agreement.
(c) there exists a material default by The parties hereto agree that, as of the date hereof, Manager under (Xxxx Realty Advisors, Inc., an Arizona corporation) is an Affiliated Manager. Notwithstanding anything to the contrary set forth in Section 4.15(a) above, Borrower and/or Guarantor may, without Administrative Agent’s or any Lender’s consent, remove the Property from the Management Agreement. At such time as Agreement provided the Manager may be removed, Property remains managed at all times by a Qualified Manager and the provisions of Section 4.15(b) are otherwise satisfied. Further, in the event that Manager (Xxxx Realty Advisors, Inc., an Arizona corporation) is no longer an Affiliated Manager, then Borrower and/or Guarantor shall assume management replace Manager with a Qualified Manager and otherwise satisfy the provisions of the applicable Individual Property pursuant to a Replacement Management AgreementSection 4.15(b).
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event Operating Lessee shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the each Management Agreement, on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed to in accordance with the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement terms thereof and (ii) promptly notify Lender of the giving of any notice by any Manager to Mortgage Borrower or Operating Tenant Lessee of any default by Mortgage Borrower or Operating Tenant Lessee in the performance or observance of any of the material terms, covenants or conditions of the applicable Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower Operating Lessee shall cause Operating Tenant to not (1) surrender any Management Agreement, (2) except as required by the terms of the Management Agreement, consent to the assignment by the any Manager of its respective interest under the applicable Management Agreement, (3) terminate or cancel any Management Agreement or (4) except as required by the terms of the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter modify or amend the any Management Agreement, in any material respect, either orally or in writing. Notwithstanding writing in each case without the foregoingconsent of Lender which consent shall not be unreasonably withheld, Mortgage Borrower conditioned or Operating Tenant may terminate a delayed; provided, however, that immaterial modifications, amendments, changes or supplements of any Management Agreement may be made without consent of Lender (provided, that, in no instance shall any modification, amendment, change or supplement of the Marriott Management Documents which would reduce the consent rights or other discretionary rights of Borrower and/Operating Lessee thereunder from those set forth in the Marriott Management Documents as of the Closing Date be deemed immaterial); and provided that Borrower or further, that, Operating Tenant simultaneously enters into Lessee may, without Lender’s consent (except with respect to any Lender consent required pursuant to the definitions of Qualified Manager and Replacement Management Agreement set forth herein), replace the Manager so long as the replacement manager is a Qualified Manager pursuant to a Replacement Management Agreement with a Qualified Manager. Subject and any termination fees and other sums payable to the rights Manager being replaced are either (i) paid from Excess Cash Flow which is entitled to be used for such payment in accordance with the terms and conditions of Mortgage Lenderthis Agreement or (ii) paid from an equity contribution to the Operating Lessee from sources other than the Collateral. Operating Lessee hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, if Mortgage Borrower covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Operating Lessee to surrender any Management Agreement, or, except as otherwise provided in this Agreement, to terminate, cancel, modify or amend any Management Agreement, in any material respect, and any such surrender of any Management Agreement, or termination, cancellation, modification or amendment of any Management Agreement, without the prior consent of Lender (other than as permitted pursuant to this Agreement) shall be void and of no force and effect. If Operating Tenant Lessee 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 or Operating Tenant Lessee to be performed or observed, then, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower or Operating Lessee from any of its obligations hereunder, Borrower Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 applicable Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actionLessee. Borrower shall cause Lender and any Person designated by Lender to 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 any Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant Lessee 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. None Operating Lessee shall not, and, subject to the terms of Borrowerthe Management Agreement, Mortgage Borrower or Operating Tenant shall, or permit, the shall not permit any Manager to, sub-contract any or all of its respective management responsibilities under the any Management Agreement to a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower Following the occurrence and during the continuance of an Event of Default, Operating Lessee shall not exercise any rights or make any decisions, grant any approvals or otherwise take any action under the Management Agreement without the prior consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion. Operating Lessee shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use commercially reasonable efforts to obtain from the each Manager and deliver to Lender and each Mezzanine Lender such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant Lessee with the terms of the applicable Management Agreement as may be requested by Lender Lender; provided, that, so long as no Event of Default has occurred and is continuing, Operating Lessee shall not be required to provide such statement more than one (which requests 1) time in any Fiscal Year, provided, further, that such estoppel shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower addressed to both Lender and Mortgage Borrower shall cause Operating Tenant 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 or prior to the period within which any such option may be exercisedMezzanine Lender. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, BorrowerOperating Lessee, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate the applicable Management Agreement and replace the applicable Manager with a Qualified Manager, without penalty or fee, if at any time during the Loan: (ai) the Manager shall become insolvent or a debtor in (I) any involuntary bankruptcy or insolvency proceeding that is not dismissed within ninety (90) days of the filing thereof, or (II) any voluntary bankruptcy or insolvency proceeding, ; (bii) there exists an Event of Default, ; or (ciii) there exists a monetary or material non-monetary default by Manager beyond all applicable notice and cure periods under the Management Agreement. Additionally, at Lender’s option, Lender shall have the right to terminate the Management Agreement and replace Manager, without penalty or fee, if there exists an Event of Default which remains uncured and is continuing. At such time as the such Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
(c) At all times when Operating Lessee is a party to any Management Agreement with respect to any Individual Property, Borrower shall cause Operating Lessee to comply with the terms of this Section 5.1.17 with respect to such Individual Property. In the event that
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, Borrower shall cause Operating Tenant 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, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject to in any respect, and any such surrender of the rights Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of Mortgage Lender, if Mortgage the Management Agreement without the prior consent of Lender shall be void and of no force and effect.
(b) If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage .
(c) Borrower or Operating Tenant shall, or permit, the shall 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, or cause Mortgage Borrower to cause Operating Tenant to, 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 Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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 Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bd) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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 Borrower to engage, within sixty (60) days of the termination of such Management Agreement and replace otherwise in accordance with the terms and 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) the which such New Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager. New Manager shall assume management of the applicable Individual Property 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. Without limitation of the foregoing, if required by Lender, Borrower shall, as a condition precedent to Borrower’s engagement of such New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and management agreement.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties Property are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe in all material respects all of the material terms, covenants and conditions of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the material rights of Mortgage Borrower and Operating Tenant under the Management Agreement or Replacement Management Agreement, if applicable, and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any material default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to not surrender the Management Agreement or Replacement Management Agreement, if applicable, consent to the assignment by the Manager of its interest under the Management Agreement (except as provided herein) or Replacement Management Agreement, if applicable, or terminate or cancel the Management Agreement or Replacement Management Agreement, if applicable, or modify, change, supplement, alter or amend the Management Agreement or Replacement Management Agreement, if applicable, in any material respect, either orally or in writing, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement, if applicable, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject to or Replacement Management Agreement, if applicable, in any respect, and any such surrender of the rights Management Agreement or Replacement Management Agreement, if applicable, or termination, cancellation, modification, change, supplement, alteration or amendment of Mortgage the Management Agreement or Replacement Management Agreement, if applicable, without the prior consent of Lender, if Mortgage which consent shall not be unreasonably withheld, conditioned or delayed, shall be void and of no force and effect. If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement or Replacement Management Agreement, if applicable, 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 person designated by Lender to shall have, and are hereby granted, the right upon reasonable advance written notice to Borrower to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of material default under the Management Agreement or Replacement Management Agreement, if applicable, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereonthereon unless such action constitutes the willful misconduct, fraud, illegal acts or gross negligence of Lender or Lender’s agent. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, shall notify Lender if the Manager to, sub-contract contracts to a third party any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lenderor Replacement Management Agreement, which consent shall not be unreasonably withheldif applicable. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement or Replacement Management Agreement, if applicable, as may be reasonably requested by Lender (which requests shall be made no more frequently than once to the extent provided for in any consecutive twelve month period unless such request the Management Agreement or Replacement Management Agreement if the Manager is made in connection with a Securitization)not an Affiliate of Borrower. Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement or Replacement Management Agreement, if applicable, upon demand by Lender made at any time within or prior to one (1) year of the period within 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 Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate the Management Agreement or Replacement Management Agreement, if applicable 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) provided, the Manager is an Affiliated Manager, (1) there exists a non-monetary Event of Default which remains uncured for at least thirty (30) days following written notice from Lender to Borrower of such non-monetary Event of Default (provided, however, such thirty (30) day notice and cure period is solely for the purpose of terminating the Management Agreement and Lender reserves all rights it has upon an Event of Default pursuant to Article 8 of this Agreement including, without limitation, a foreclosure of the Security Instrument), or (2) there exists a monetary Event of Default, or (c) there exists a material default beyond all applicable notice and grace periods by Manager under the Management Agreement or Replacement Management Agreement, if applicable. At such time as the Manager may be removed, a Qualified 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 Each Collateral Property is operated under the terms and conditions of the applicable Management Agreement. In no event Operating Lessee shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, Agreements on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed to the end that all things shall be A/72912756.15 done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant Lessee under the Management Agreement Agreements and (ii) promptly notify Lender Administrative Agent and the Lenders of the giving of any notice by any Manager to Mortgage Borrower or Operating Tenant Lessee of any default by Mortgage Borrower or Operating Tenant Lessee in the performance or observance of any of the terms, covenants or conditions of the any Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice. Neither Borrower nor Mortgage Borrower Operating Lessee shall cause Operating Tenant to not surrender the any Management Agreement, consent to the assignment by the any Manager of its interest under the a Management Agreement, or terminate or cancel the any Management Agreement, or modify, change, supplement, alter or amend the any Management Agreement, in any material respect, either orally or in writingwriting without Required Lenders’ prior written consent. Notwithstanding Borrowers hereby assign to Administrative Agent for benefit of the foregoingSecured Parties as further security for the payment of the Obligations and for the performance and observance of the terms, Mortgage Borrower covenants and conditions of this Agreement and the other Loan Documents, all the rights, privileges and prerogatives of Borrowers to surrender any Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend such Management Agreements, in any material respect, and any such surrender of such Management Agreements, or termination, cancellation, modification, change, supplement, alteration or amendment of any Management Agreement provided that Borrower in any material respect, without the prior consent of Administrative Agent and Required Lenders, shall be void and of no force and effect. Any such proposed modification, change, supplement, alteration or Operating Tenant simultaneously enters into a Replacement amendment of the Management Agreement submitted to Administrative Agent and the Lenders for approval shall be deemed approved if (i) Borrowers deliver to the Lenders a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT AND REQUIRED LENDERS’ RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A TERM LOAN AGREEMENT AMONG THE UNDERSIGNED, AND ADMINISTRATIVE AGENT AND OTHERS” and the envelope containing the request must be marked “PRIORITY”, and (ii) Administrative Agent and Required Lenders shall have failed to notify Borrowers of approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s and the Lenders’ receipt of Borrowers’ written request together with such proposed modification, change, supplement, alteration or amendment of the Management Agreement, and any and all other information and documentation relating thereto reasonably required by Administrative Agent or the Lenders to reach a decision. In no event shall Administrative Agent or the Required Lenders be deemed to have approved (1) a surrender, termination or cancellation of the Management Agreement, (2) any change having a Material Adverse Effect under the Management Agreement, or (3) or a new management agreement with a Qualified Managernew property manager. Subject Upon a Borrower’s request, Administrative Agent and each of the disapproving Lenders shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.17. The certain modifications to the rights Management Agreements described in Schedule 7.17 shall be deemed to have been preapproved by Administrative Agent and the Required Lenders as of Mortgage Lender, if Mortgage Borrower or the Closing Date.
(b) If Operating Tenant Lessee 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 or Operating Tenant Lessee to be performed or observed, after expiration of any applicable notice and cure periods provided in such Management Agreement, then, without limiting the generality A/72912756.15 of the other provisions of this Agreement, and without waiving or releasing such Borrower from any of its obligations hereunder, Borrower Administrative Agent shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant Lessee to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, Lessee to the end that the rights of Mortgage Borrower or Operating Tenant Lessee in, to and under the such Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actiondefault in all material respects. Borrower shall cause Lender Administrative Agent and any Person designated by Lender Administrative Agent by written notice to Borrowers shall have, and are hereby granted, the right to enter upon the applicable Individual Collateral Property at any time and from time to time for the purpose of taking any such action. If the any Manager shall deliver to Lender Administrative Agent a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by Lender Administrative Agent in good faith, in reliance thereon. None of BorrowerOperating Lessee shall not, Mortgage Borrower or Operating Tenant shall, or permit, the and shall not permit any Manager to, sub-contract all or any or all material portion of its management responsibilities under the any Management Agreement to a third-party without the prior written consent of LenderAdministrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned. Borrower shall, or cause Mortgage Borrower Operating Lessee shall request of Managers and deliver to cause Operating Tenant to, from time to time, obtain from the Manager Administrative Agent upon receipt such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant Lessee with the terms of the its respective Management Agreement as may be reasonably requested by Lender (which requests Administrative Agent. Operating Lessee shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the its respective Management Agreement upon demand by Lender made at any time within or prior Agreements to the period within which extent required to continue it in full force and effect until after the Maturity Date, and Operating Lessee hereby authorizes and appoints Administrative Agent its attorney-in-fact to exercise any such option may in the name of and upon behalf of Operating Lessee, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender Administrative Agent 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 LenderAdministrative Agent, (ii) shall be deemed to constitute a portion of the DebtObligations, (iii) shall be secured by the lien of the Pledge Agreement Mortgages and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender Administrative Agent therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bc) Without limitation of the foregoing, Borrowerthe applicable Borrower shall, upon the request of LenderAdministrative Agent or the Required Lenders, shall cause Mortgage Borrower to, or cause Operating Tenant toand in accordance with the provisions of the applicable assignment of Management Agreement, terminate the any Management Agreement and replace the ManagerManager thereunder, without penalty or feefee payable by Borrowers, Administrative Agent or Lenders, if at any time during the Loanterm of this Agreement: (ai) the such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, proceeding or (bii) there exists an Event event of Default, (c) there exists a material default by such Manager under the applicable Management Agreement. At such time as Agreement which continues beyond any applicable cure period, except that the Manager may be removed, a Qualified Manager requirements of this Section 7.17(c)(ii) shall assume management not apply in the event each and all of the following conditions shall be satisfied (1) the applicable Individual Borrower shall be diligently prosecuting the resolution of such default in a commercially reasonable manner, (2) Administrative Agent and the Lenders shall receive copies of all notices and correspondence sent and/or received by the applicable Borrower with respect to such A/72912756.15 default, (3) no Event of Default exists and is continuing and (4) no Material Adverse Effect or Material Property pursuant to a Replacement Management AgreementEvent shall have occurred.
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrueProperty. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower Pledgor shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Pledgor shall cause Mortgage Borrower shall cause Operating Tenant 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 material respect, either orally or in writingwriting without the Lender’s prior written consent, which consent shall not be unreasonably, withheld, conditioned or delayed. Notwithstanding In the foregoingevent that the Management Agreement expires or is terminated (without limiting any obligation of Pledgor to obtain Lender’s consent to any termination or modification of the Management Agreement in accordance with the terms and provisions of this Agreement), Pledgor shall cause Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters to promptly enter into a Replacement Management Agreement with a Manager or another Qualified Manager, as applicable. Subject to the rights of Mortgage Lender and Mezzanine A Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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, Borrower Pledgor shall permit Lender, upon five (5) days prior notice to Borrower, Lender to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower Pledgor shall cause Lender and any Person designated by Lender to have, 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 or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Pledgor shall cause Mortgage Borrower or Operating Tenant shallto not, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use commercially reasonable efforts to obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which any such option may be exercisedLender. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, BorrowerPledgor, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment 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) 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 percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the applicable Individual Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to shall, (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to 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. Notwithstanding Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement provided that 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 or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of BorrowerBorrower shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management AgreementAgreement that continues beyond the expiration of any applicable notice and cure periods. At such time as the Manager may be removed, a Qualified Qualifying Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Loan Agreement (U-Store-It Trust)
Management Agreement. (a) The Improvements on the Properties are operated under the terms Borrower shall (and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to to) (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Without Lender’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, Borrower nor shall not permit Mortgage Borrower shall cause Operating Tenant to surrender the Management Agreement, consent to the assignment by the Manager of its interest under the Management Agreement, or terminate or cancel the Management Agreement, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment 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 permit Mortgage Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement 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 consents required pursuant to this Section 4.15(a) shall be void and of no force and effect; provided that, Borrower shall not be required to obtain Lender’s consent with a Qualified Manager. Subject respect to any non-material changes, supplements, alterations or amendments to the rights of Mortgage Lender, if Management Agreement. If Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender shall have, and are hereby granted, subject to havethe terms and conditions of, and the rights of Tenants under the Leases, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall 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, or shall (and shall cause Mortgage Borrower to cause Operating Tenant to), from time to time, use its commercially reasonable efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant Mortgage Borrower 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 or prior to one (1) year of the period within last day upon which any such option may be exercised, and, should Borrower so fail to exercise such option, (on behalf of Mortgage Borrower) hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Mortgage 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 Interest Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrowerif the Management Agreement is terminated pursuant to the Assignment of Management Agreement or for any other reason, upon the request of then Lender, at its option, may require Borrower to cause Mortgage Borrower to engage, in accordance with the terms and conditions set forth in the Assignment of Management Agreement, a new manager (the “New Manager”) to manage the Property, which such New Manager shall be a Qualified Manager. New Manager shall be engaged by Mortgage Borrower pursuant to a written management agreement that complies with the terms hereof and of the Assignment of Management Agreement and is otherwise satisfactory to Lender in all respects. Borrower shall (or shall cause Mortgage Borrower to) cause New Manager and Mortgage Borrower to execute an Assignment of Management Agreement in the form then used by Lender. Without limitation of the foregoing, or cause Operating Tenant toif required by Lender, Borrower shall, as a condition precedent to Mortgage Borrower’s engagement of such New Manager, obtain a Rating Agency Confirmation with respect to such New Manager and new management agreement.
(c) The parties hereto agree that, from and after the effective date of the Prime Management Agreement, Xxxx Realty Advisors, Inc. shall be an Affiliated Manager. Notwithstanding anything to the contrary set forth in Section 4.15(a) above, Mortgage Borrower may, without Lender’s consent, terminate the Management Agreement and replace provided the Manager, without penalty or fee, if Property remains managed at any time during the Loan: (a) the Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default all times by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management and the provisions of Section 4.15(b) are otherwise satisfied. Further, from and after the effective date of the applicable Individual Property pursuant to a Replacement Prime Management Agreement, in the event that Xxxx Realty Advisors, Inc. is no longer an Affiliated Manager, then Borrower shall cause Mortgage Borrower and/or Guarantor to replace Manager with a Qualified Manager and otherwise satisfy the provisions of Section 4.15(b).
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Cole Corporate Income Trust, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrueProperty. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower Pledgor shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Pledgor shall cause Mortgage Borrower shall cause Operating Tenant 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 material respect, either orally or in writingwriting without the Lender’s prior written consent, which consent shall not be unreasonably, withheld, conditioned or delayed. Notwithstanding In the foregoingevent that the Management Agreement expires or is terminated (without limiting any obligation of Pledgor to obtain Lender’s consent to any termination or modification of the Management Agreement in accordance with the terms and provisions of this Agreement), Pledgor shall cause Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters to promptly enter into a Replacement Management Agreement with a Manager or another Qualified Manager, as applicable. Subject to the rights of Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Mezzanine C Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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, Borrower Pledgor shall permit Lender, upon five (5) days prior notice to Borrower, Lender to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower Pledgor shall cause Lender and any Person designated by Lender to have, 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 or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Pledgor shall cause Mortgage Borrower or Operating Tenant shallto not, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use commercially reasonable efforts to obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which any such option may be exercisedLender. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, BorrowerPledgor, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, Borrower shall cause Operating Tenant 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 material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoing, Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to payment of the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in Debt and for the performance or and observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 permit Lender, upon five (5) days prior notice to Borrower, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed terminate, cancel, modify, change, supplement, alter or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under amend the Management Agreement shall be kept unimpaired in any respect, 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 to have, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms surrender of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual optionor termination, if anycancellation, to extend modification, change, supplement, alteration or renew the term amendment of the Management Agreement upon demand by Lender made at any time within or prior to without the period within which any such option may be exercised. Any sums expended by Lender consents required 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, (iiSection 4.15(a) shall be deemed void and of no force and effect; provided that, Borrower shall not be required to constitute a portion of obtain Lender’s consent with respect to any non-material changes, supplements, alterations or amendments to the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.Management
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are Each Collateral Property is operated under the terms and conditions of the applicable Management Agreement. In no event shall the base management fees Base Management Fees under the any Management Agreement exceed three two percent (32%) of the gross income derived from the applicable Collateral Property and (excluding any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under Incentive Management Fees which are subordinate to the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the PropertyLoan). Borrower Operating Lessee shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, Agreements on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant Lessee under the Management Agreement Agreements and (ii) promptly notify Lender Administrative Agent of the giving of any notice by any Manager to Mortgage Borrower or Operating Tenant Lessee of any default by Mortgage Borrower or Operating Tenant Lessee in the performance or observance of any of the terms, covenants or conditions of the any Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice. Neither Borrower nor Mortgage Borrower Operating Lessee shall cause Operating Tenant to not surrender the any Management Agreement, consent to the assignment by the any Manager of its interest under the a Management Agreement, or terminate or cancel the any Management Agreement, or modify, change, supplement, alter or amend the any Management Agreement, in any material respect, either orally or in writingwriting without Administrative Agent’s prior written consent, and following a Securitization, without Rating Agency Confirmation. Notwithstanding Borrowers hereby assign to Administrative Agent for benefit of the foregoing, Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to Secured Parties as further security for the rights payment of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the Obligations and for the performance or and observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 permit Lender, upon five (5) days prior notice to Borrower, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrowers to surrender any Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend such Management Agreements, in any material respect, and any such surrender of such Management Agreements, or termination, cancellation, modification, change, supplement, alteration or amendment of any Management Agreement in any material respect, without the prior consent of Administrative Agent, and following a Securitization, without Rating Agency Confirmation, shall be void and of no force and effect. Upon a Borrower’s request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.17. Borrowers shall not enter into any Replacement Management Agreement without Administrative Agent’s prior written consent; provided, however, with respect to any expiring or replacement Management Agreement, Borrowers shall notify Administrative Agent but shall not be required to obtain Administrative Agent’s consent (or Rating Agency Confirmation) if the Management Agreement in effect on the part of Mortgage Borrower date hereof is extended on the same or more favorable terms to Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, Lessee as prior to the end expiration thereof; provided, further, that in such event the rights applicable Borrowers will be required to deliver an extension of Mortgage Borrower the conditional assignment of management agreement obtained by Administrative Agent on the date hereof in connection with the original Management Agreement. Any such proposed modification, change, supplement, alteration or Operating Tenant in, to and under amendment of the Management Agreement submitted to Administrative Agent for approval shall be kept unimpaired deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND ADMINISTRATIVE AGENT” and free from defaultthe envelope containing the request must be marked “PRIORITY,” and (ii) Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s receipt of Borrowers’ written request together with such proposed modification, change, supplement, alteration or amendment of the Management Agreement, and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision; provided, however, that Lender in no event shall Administrative Agent be deemed to have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to haveapproved (1) a surrender, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose termination or cancellation of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for (2) any action taken modification, change, supplement, alteration or omitted to be taken by Lender in good faithamendment of the Management Agreement that affects any of the material business terms of the Management Agreement, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the Manager to, sub-contract (3) any or all of its management responsibilities change under the Management Agreement to that could result in a third-party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Borrower shallMaterial Property Event, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in 4) any consecutive twelve month period unless such request is made in connection with a Securitization). Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within or prior to the period within which any such option may be exercised. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by Manager under the Replacement Management Agreement. At Upon a Borrower’s request, Administrative Agent shall deliver to such time as the Manager may be removed, Borrower a Qualified Manager shall assume management reasonably detailed description of the applicable Individual Property pursuant reasons for any disapprovals under this Section 7.17. For avoidance of doubt, Administrative Agent hereby approves modifications to a Replacement the Management Agreement.Agreements affecting the Embassy Properties, to the extent (A) such modifications are required solely to implement the agreed-upon terms set forth in that certain Master Agreement for Extension of Management Agreements dated January 1, 2009, by and between FelCor TRS Holdings, for
Appears in 1 contract
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default (after applicable notice and cure) by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Xxxxxx’s prior written consent (such consent not to be unreasonably withheld or delayed), Borrower shall cause Operating Tenant 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, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Managerin 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 (such consent not to be unreasonably withheld or delayed) shall be void and of no force and effect. Subject to the rights of Mortgage Lender, if Mortgage If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, use its commercially reasonable efforts to obtain from Manager under the Manager Management Agreement such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Xxxxxx. Borrower and Mortgage Borrower shall cause Operating Tenant to 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 or prior to one (1) year of the period within last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise, during the continuance of an Event of Default, 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 Pledge Agreement Security Instrument and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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 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) the which such New Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager. New Manager shall assume management of the applicable Individual Property be engaged by Xxxxxxxx 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 Xxxxxxxx shall execute an Assignment of Management Agreement in the form then used by Lender. Without limitation of the foregoing, if required by Xxxxxx, Borrower shall, as a condition precedent to Xxxxxxxx’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, Xxxxxxxx’s engagement of such New Manager shall be subject to Xxxxxxxx’s delivery to Lender of a New Non-Consolidation Opinion with respect to such New Manager and new management agreement.
Appears in 1 contract
Samples: Loan Agreement
Management Agreement. (a) The Improvements on the Properties Property are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Agreement or Replacement Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property)as applicable. Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe in all material respects all of the material terms, covenants and conditions of the Management Agreement or Replacement Management Agreement, if applicable, on the part of such Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the material rights of such Mortgage Borrower and Operating Tenant under the Management Agreement or Replacement Management Agreement, if applicable and (ii) promptly notify Lender of the giving of any notice by Manager to such Mortgage Borrower or Operating Tenant of any material default by such Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement or Replacement Management Agreement, if applicable on the part of such Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant not, and shall not cause, permit, suffer to exist the surrender of the Management Agreement or Replacement Management Agreement, if applicable, a consent to the assignment by the Manager of its interest under the Management Agreement, Agreement (except as provided herein) or terminate or cancel the Replacement Management Agreement, if applicable, or a termination or cancellation of the Management Agreement or Replacement Management Agreement, if applicable, or a modification, change, supplement, alteration or amendment of the Management Agreement or Replacement Management Agreement, if applicable, in any material respect, either orally or in writing, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. 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 Replacement Management Agreement, if applicable, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement or Replacement Management Agreement, if applicable, in any material respect, either orally and any such surrender of the Management Agreement or in writingReplacement Management Agreement, if applicable, or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement or Replacement Management Agreement, if applicable, without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, shall be void and of no force and effect. Notwithstanding the foregoing, If Mortgage Borrower or Operating Tenant may terminate a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Replacement Management Agreement, if applicable, on the part of Mortgage Borrower or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement or Replacement Management Agreement, if applicable, 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 person designated by Lender to shall have, and are hereby granted, the right upon reasonable advance written notice to Borrower and Mortgage Borrower 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 a Mortgage Borrower or Operating Tenant of material default under the Management Agreement or Replacement Management Agreement, if applicable, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereonthereon unless such action constitutes the willful misconduct, fraud, illegal acts or gross negligence of Lender or Lender’s agent. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, shall notify Lender if the Manager to, sub-contract contracts to a third party any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lenderor Replacement Management Agreement, which consent shall not be unreasonably withheldif applicable. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement or Replacement Management Agreement, if applicable, as may be reasonably requested by Lender (which requests shall be made no more frequently than once to the extent provided for in any consecutive twelve month period unless such request the Management Agreement or Replacement Management Agreement if the Manger is made in connection with a Securitization)not an affiliate of Borrower. Borrower and Mortgage Borrower shall exercise or cause Operating Tenant to the exercise of each individual option, if any, to extend or renew the term of the Management Agreement or Replacement Management Agreement, if applicable, upon demand by Lender made at any time within or prior to one (1) year of the period within 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, as the sole owner of Mortgage 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 Lien of the Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoingforegoing but subject to the rights of the Mortgage Lender, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate to be terminated the Management Agreement or Replacement Management Agreement, if applicable 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) provided the Manager is an Affiliated Manager, there exists a non-monetary Event of Default which remains uncured for at least thirty (30) days following written notice from Lender to Borrower of such non-monetary Event of Default (provided, however, such thirty day notice and cure period is solely for the purpose of terminating the Management Agreement and Lender reserves all rights it has upon an Event of DefaultDefault pursuant to Article VIII of this Agreement including, without limitation, a foreclosure of the Security Instruments), (c) provided the Manager is an Affiliated Manager, there exists a material monetary Event of Default which remains uncured, or (d) there exists a default beyond all applicable notice and grace periods by Manager under the Management Agreement or Replacement Management Agreement, if applicable. At such time as the Manager may be removed, a Qualified 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 under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three (I) with respect to the Properties managed by InterContinental Hotels Group or any of its Affiliates, the sum of (x) five percent (35%) of total room revenue and (y) two percent (2%) of total revenue; provided, however, InterContinental Hotels Group or any of its Affiliates 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 InterContinental Hotels Group or any of its Affiliates, four percent (4%) of the gross income derived from the Property and (excluding any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under which are subordinate to the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the PropertyLoan). Borrower shall cause Mortgage Borrower to (or shall cause Operating Tenant to Lessee to)
(i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant Lessee under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant Lessee of any default by Mortgage Borrower or Operating Tenant Lessee in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant Lessee to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower Operating Lessee shall cause Operating Tenant to 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. Notwithstanding Borrower hereby assigns (and Borrower shall cause Operating Lessee to assign) to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower and/or Operating Lessee to surrender the Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management 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 in any material respect, without the prior consent of Lender, shall be void and of no force and effect. Any such proposed modification, change, supplement, alteration or amendment of the Management Agreement submitted to Lender for approval shall be deemed approved if (i) Borrower delivers to Lender a written request for such approval marked in bold lettering with the following language: "LENDER'S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER. FAILURE TO RESPOND SHALL BE DEEMED AN APPROVAL." and the envelope containing the request is marked "PRIORITY"; and (ii) Lender shall have failed to notify Borrower of its approval or disapproval within such fifteen (15) Business Days following Lender's receipt of Borrower's written request together with such proposed modification, change, supplement, alteration or amendment of the Management Agreement, and any and all other information and documentation relating thereto reasonably required by Lender to reach a decision. In no event shall Lender be deemed to have approved (1) a surrender, termination or cancellation of the Management Agreement, (2) any change having a material adverse effect on Borrower's or Operating Tenant may terminate Lessee's costs or obligations under the Management Agreement, or (3) or a Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement Management Agreement new management agreement with a Qualified Managernew property manager. Subject Upon Borrower's request, Lender shall deliver to Borrower a reasonably detailed description of the rights of Mortgage Lender, if Mortgage Borrower or reasons for any disapprovals under this Section 5.1.18. If Operating Tenant Lessee shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant Lessee to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating Tenant, Lessee to the end that the rights of Mortgage Borrower or Operating Tenant Lessee 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 by written notice to Borrower 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 Mortgage Borrower or and/or Operating Tenant 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. None of BorrowerBorrower and Operating Lessee shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, delayed or conditioned. Borrower shall, or cause Mortgage Borrower to cause Operating Tenant to, from time to time, obtain from the cause Operating Lessee to request of Manager and deliver to Lender upon receipt such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant Lessee with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower and/or Operating Lessee shall cause Operating Tenant 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 or prior to the period within which extent required to continue it in full force and effect until after the Maturity Date, and Borrower hereby authorizes and appoints (and shall cause Operating Lessee to authorize and appoint) Lender their attorney-in-fact to exercise any such option may in the name of and upon behalf of Borrower and/or Operating Lessee, which power of attorney shall be exercisedirrevocable 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(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 Assignment of Management Agreement, shall cause Mortgage Borrower to, or cause Operating Tenant to, 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 material an event of default by Manager under the Management Agreement. At such time as the Manager may be removed, provided no Event of Default has occurred, a Qualified Manager shall may be selected by Borrower and/or Operating Lessee to 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 Property are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three four percent (34%) of the gross income derived Gross Income from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income Operations derived from the Property). Borrower shall or shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant Mortgage Borrower 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 material respect, either orally or in writing. Notwithstanding the foregoing; provided, however, that Mortgage Borrower or Operating Tenant may shall have the right to terminate a the Management Agreement provided that without Lender’s prior written consent upon satisfaction of the following conditions: (i) Borrower or Operating Tenant simultaneously enters into a Replacement causes Mortgage Borrower to deliver to Lender written notice of its intention to terminate the Management Agreement at least five (5) days prior to such termination; (ii) Mortgage Borrower replaces Manager within thirty (30) days of the termination of the Management Agreement with a Qualified ManagerManager pursuant to a Replacement Management Agreement reasonably acceptable to Lender; (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. Subject to the rights of Mortgage 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 cause Mortgage 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. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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, Borrower Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 or Mortgage Borrower or Operating Tenant 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. None ; 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 or Mortgage Borrower a written notice disputing Manager’s notice and stating the basis of such dispute and that it, or Mortgage Borrower, 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 cause Mortgage Borrower or Operating Tenant shallto not, or permit, the and shall not permit 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, or cause Mortgage Borrower to cause Operating Tenant to, 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 Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant Mortgage Borrower 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 or prior to one (1) year of the period within last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to cause Mortgage Borrower 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 Pledge Agreement and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, to terminate the Management Agreement and replace the 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 period, (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 material default by days after Manager under the Management Agreement. At such time as the Manager may be is removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.1.18, whenever Lender’s approval is required (x) of a Qualified Manager under clause (b)(i) of the definition of “Qualified Manager”, (y) a Replacement Management Agreement, or (z) Manager’s subcontracting of any of its responsibilities under the Management Agreement, Lender shall be deemed to have given such approval (A) if Mezzanine Loan D is then outstanding and (1) the Mezzanine Lender D shall have confirmed in writing that Mezzanine Lender D has given such approval pursuant to the terms and provisions of the Mezzanine D Loan Documents or (2) Borrower shall have provided Lender with evidence reasonably acceptable to Lender that Mezzanine Lender D has been deemed to have given such approval pursuant to the terms and provisions of the Mezzanine D Loan Documents (which evidence may consist of copies of all submissions required to obtain such deemed approval thereunder), (B) if Mezzanine Loan D is no longer outstanding but Mezzanine Loan C is then outstanding and (1) Mezzanine Lender C shall have confirmed in writing that the Mezzanine Lender C has given such approval pursuant to the terms and provisions of the Mezzanine C Loan Documents or (2) Borrower shall have provided Lender with evidence reasonably acceptable to Lender that Mezzanine Lender C has been deemed to have given such approval pursuant to the terms and provisions of the Mezzanine C Loan Documents (which evidence may consist of copies of all submissions required to obtain such deemed approval thereunder), or (C) if neither Mezzanine Loan D nor Mezzanine Loan C are then outstanding but Mezzanine Loan B is then outstanding and (1) Mezzanine Lender B shall have confirmed in writing that Mezzanine Lender B has given such approval pursuant to the terms and provisions of the Mezzanine B Loan Documents or (2) Borrower shall have provided Lender with evidence reasonably acceptable to Lender that Mezzanine Lender B has been deemed to have given such approval pursuant to the terms and provisions of the Mezzanine B Loan Documents (which evidence may consist of copies of all submissions required to obtain such deemed approval thereunder); provided, however, that the foregoing shall in no event relieve Borrower of its obligations to deliver to Lender a non- consolidation opinion acceptable to the Rating Agencies (if applicable) and an Assignment of Management Agreement substantially in the form of the Assignment of Management Agreement delivered to Lender by Manager on the date hereof in connection with any new Qualified Manager or Replacement Management Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Piedmont Office Realty Trust, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Without Lender’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned, Borrower shall cause Operating Tenant 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, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Managerin 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. Subject to the rights of Mortgage Lender, if Mortgage If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person person designated by Lender to shall have, and are hereby granted, the right to enter upon the applicable any Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall 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, or cause Mortgage Borrower to cause Operating Tenant to, 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 Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant to exercise each individual option, if any, to extend or renew the term of the Management Agreement upon written demand by Lender made at any time within or prior to one (1) year of the period within 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; provided, however, such power of attorney shall not be exercised unless an Event of Default exists. 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. Any reasonable sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon written demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant to, terminate if the Management Agreement is terminated or expires pursuant to the Assignment of Management Agreement or for any other reason, then Lender, at its option, may require Borrower to engage, in accordance with the terms and replace conditions set forth in the Assignment of Management Agreement, a new manager (the “New Manager”) to manage any Individual Property, without penalty or fee, if at any time during the Loan: (a) the which such New Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, (c) there exists a material default by Manager under the Management Agreement. At such time as the Manager may be removed, a Qualified Manager. New Manager shall assume management of the applicable Individual Property 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 reasonably satisfactory to Lender in all material respects. New Manager and Borrower shall execute an Assignment of Management Agreement in the form then used by Lender. Without limitation of the foregoing, if required by Lender, Borrower shall, as a condition precedent to Borrower’s engagement of such New Manager, (i) obtain a Rating Agency Confirmation with respect to such New Manager and new management agreement, and (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.
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Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (3%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform perform, observe and observe enforce all of the material terms, covenants and conditions of the Management Agreement, Agreement on the part of Mortgage Borrower or Operating Tenant 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 and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage .
(b) Without Lender’s prior written consent, Borrower shall cause Operating Tenant 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, Agreement or modify, change, supplement, alter or amend the Management Agreement, in any material respect, either orally or in writing. Notwithstanding , and Borrower hereby assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower or Operating Tenant may terminate a to surrender the Management Agreement provided that Borrower or Operating Tenant simultaneously enters into a Replacement to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement with a Qualified Manager. Subject to in any respect, and any such surrender of the rights Management Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of Mortgage Lender, if Mortgage the Management Agreement without the prior consent of Lender shall be void and of no force and effect.
(c) If Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to shall have, and are hereby granted, the right to enter upon the applicable any Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of Borrower, Mortgage Borrower or Operating Tenant shall, or permit, the shall 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, or cause Mortgage Borrower to cause Operating Tenant to, 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 Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be reasonably requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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. 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 and following five (5) days notice and opportunity to cure to Borrower, constitute an immediate Event of Default. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(bd) Without limitation of the foregoingBorrower shall, Borrowerfrom time to time, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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, (c) there exists a material default by use its commercially reasonable efforts to obtain from Manager under the Management Agreement. At Agreement such time certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreementrequested by Lender.
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Management Agreement. (a) The Improvements on the Properties are operated under the terms and conditions of the Management Agreement. In no event shall the base management fees under the Management Agreement exceed three four and one-half percent (3%) of the gross income derived from the Property and any incentive management fees shall not accrue. All fees (base, incentive, termination or otherwise) due under the Management Agreement must be subordinate in lien and payment to this Agreement (other than base management fees not in excess of three percent (34.5%) of the gross income derived from the Property). Borrower shall cause Mortgage Borrower to cause Operating Tenant to (i) diligently perform and observe all of the material terms, covenants and conditions of the Management Agreement, on the part of Mortgage Borrower or Operating Tenant to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and Operating Tenant under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Mortgage Borrower or Operating Tenant of any default by Mortgage Borrower or Operating Tenant in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Mortgage Borrower or Operating Tenant to be performed and observed and deliver to Lender a true copy of each such notice. Neither Borrower nor Mortgage Borrower shall cause Operating Tenant to 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. Notwithstanding Borrower hereby collaterally assigns to Lender as further security for the foregoingpayment of the Debt and for the performance and observance of the terms, Mortgage covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or Operating Tenant may terminate a to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement provided that 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 or Operating Tenant simultaneously enters into a Replacement Management Agreement with a Qualified Manager. Subject to the rights of Mortgage Lender, if Mortgage Borrower or Operating Tenant shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Mortgage Borrower or Operating Tenant 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 Lender shall permit Lenderhave the right, upon five (5) days prior notice to Borrowerbut 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 or Operating Tenant to be performed or observed to be promptly performed or observed on behalf of Mortgage Borrower or Operating TenantBorrower, to the end that the rights of Mortgage Borrower or Operating Tenant in, to and under the Management Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender to 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 Mortgage Borrower or Operating Tenant of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. None of BorrowerBorrower shall not, Mortgage Borrower or Operating Tenant shall, or permit, 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, or cause Mortgage Borrower to cause Operating Tenant to, from time to timetime (but no more than two (2) times per year when there is no occurrence and continuance of an Event of Default), obtain from the Manager such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Tenant with the terms of the Management Agreement as may be requested by Lender (which requests shall be made no more frequently than once in any consecutive twelve month period unless such request is made in connection with a Securitization)Lender. Borrower and Mortgage Borrower shall cause Operating Tenant 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 or prior to one (1) year of the period within 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 Pledge Agreement Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor. Borrower represents that Interstate Management Company, L.L.C., the current manager of the Properties, is not an Affiliate of, nor Affiliated with, Borrower, Mortgage Borrower or Guarantor.
(b) Without limitation of the foregoing, Borrower, upon the request of Lender, shall cause Mortgage Borrower to, or cause Operating Tenant 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 material default by Manager under the Management AgreementAgreement beyond applicable grace or cure periods. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement.
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