Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease. (ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement. (iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 10 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default (beyond any applicable notice, grace or cure period) under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any written notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Operating Lease. (i) Each Without Lender’s prior written consent, Borrower shall (a) promptly perform and observe all of the covenants required not permit Mortgage Borrower or Property Owner to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any the Operating Lease; or (c) enter into, renew, amend, increase or consent to the increase of the amount of any charges under the Operating Lease; (d) modify, change, supplement, alter or amend the Operating Lease or waive or release any provisions of, reduce Rents under, of Borrower’s or shorten Property Owner’s rights and remedies under the term of any Operating Lease, except as contemplated in connection with a Restructuring; or (e) waive, excuse, condone or in any way release or discharge Operating Lessee of or from Operating Lessee’s material obligations, covenants and/or conditions under the Operating Lease, except to the extent such Operating Lessee’s obligations are assumed in connection with a Restructuring. Notwithstanding the foregoing provisions of this Section 5.2.12 to the contrary, Borrower may cause or permit Mortgage Borrower and Property Owner to amend the Operating Lease without Lender’s prior written consent as follows: (i) in connection with a Release Prepayment, the Operating Lease shall be amended (or deemed amended) to (x) terminate the Operating Lease with respect to the applicable Released Property and (y) reduce the amount of Minimum Rent (as defined in the Operating Lease) by the amount of Minimum Rent allocable to such Released Property as set forth in the Operating Lease; (ii) increase or reduce the amount of Percentage Rent (as defined in the Operating Lease) payable under the Operating Lease; and (iii) increase or reduce the amount of Minimum Rent payable under the Operating Lease; provided, that in the case of an increase in Minimum Rent, such Minimum Rent shall only be increased to the then fair market value, based on transfer pricing studies conducted by an Independent CPA reasonably acceptable to Lender (any “Big 4” Independent CPA being deemed acceptable).
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC)
Operating Lease. (ia) Each Borrower shall (aA) promptly perform and observe all of the material covenants required to be performed and observed by it under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bB) promptly notify Lender of any material default under any the Operating Lease of which it is awareLease; (cC) promptly deliver to Lender a copy of any notice of default or other material notice under any the Operating Lease delivered to any Operating Lessee by Borrower; (dD) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease, unless such failure is not reasonably expected to be materially adverse to the Noteholder.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iiib) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (aA) surrender, terminate or cancel any the Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change theretoLessee; (bB) reduce or consent to the reduction of the term of any the Operating Lease; or (cC) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, under or shorten the term of the Operating Lease except in the case of clauses (B) and (C) above, to the extent the foregoing could not reasonably be expected to be materially adverse to the Noteholder in which case Lender’s consent shall not be required.
(c) Operating Lessee shall (A) promptly perform and observe all of the material covenants required to be performed and observed by it under the Operating Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (B) promptly notify Lender of any material default under the Operating Lease; (C) promptly deliver to Lender a copy of any notice of default or other material notice under the Operating Lease delivered by Operating Lessee to Borrower; (D) promptly give notice to Lender of any notice or information that Operating Lessee receives which indicates that borrower is terminating the Operating Lease; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by Borrower under the Operating Lease, unless such failure is not reasonably expected to be materially adverse to the Noteholder.
(d) Operate Lessee shall not, without the prior written consent of Lender, (A) surrender, terminate or cancel the Operating Lease (B) reduce or consent to the reduction of the term of the Operating Lease; or (C) enter into, renew, amend, modify, waive any provisions of, reduce Rents under or shorten the term of the Operating Lease except in the case of clauses (B) and (C) above, to the extent the foregoing could not reasonably be expected to be materially adverse to the Noteholder in which case Lender’s consent shall not be required.
(e) Borrower and Operating Lessee hereby agree that upon the occurrence, and during the continuance, of an Event of Default under the Loan Documents, at the option of Noteholder exercised in Noteholder’s sole discretion by written notice to Assumptor and Operating Lessee, Noteholder may exercise Assumptor’s rights and remedies under the Operating Lease and the Security Agreement dated as of the date hereof by and between the Assumptor and the Operating Lessee. Operating Lessee agrees to promptly, upon Noteholder’s request, fully and faithfully do all things necessary to effect the foregoing.”
hh. The opening clause of Article 6 of the Loan Agreement is hereby deleted and replaced with the following: “Borrower and Operating Lessee, represent, warrants and covenants, each to itself only unless otherwise noted, as follows:”
ii. All representations, warranties and covenants in Article 6 of Loan Agreement shall be considered made by both Borrower and Operating Lessee, each to itself only unless otherwise noted, and as with respect to Operating Lessee, modified, where appropriate to refer to Operating Lessee’s leasehold interest in the Property through the Operating Lease and Operating Lessee’s status as a corporation, and all references to the Borrower in such Sections are hereby modified to refer to each of Borrower and Operating Lessee. Lender acknowledges that the Operating Lease is permitted notwithstanding the provisions of Article 6 of Loan Agreement.
jj. The definition of “Reimbursement and Indemnity Agreement” in Section 6.1(a)(xi) of the Loan Agreement is hereby deleted along with all references to such defined term in the Loan Agreement and other Loan Documents.
kk. The reference to “RP/X Xxxxxxxx, Limited Partnership, a Delaware limited partnership” in Article 6 of the Loan Agreement are hereby deleted along with any other references to such entity in the Loan Documents.
ll. The last paragraph of Section 6.1 of the Loan Agreement is hereby deleted and replaced with the following: “Lender acknowledges and agrees that, as of the date of the Assumption Agreement, each of the Limited Liability Company Agreements of Borrower and the By Laws of Operating Lessee satisfies the requirements of Section 6.1 and Section 6.4 and is acceptable for the purpose of closing the Loan.”
mm. The definition of “Restricted Party” in Section 7.1 of the Loan Agreement is hereby modified to include Operating Lessee as a Restricted Party.
Appears in 2 contracts
Samples: Assumption Agreement, Assumption Agreement (Sunstone Hotel Investors, Inc.)
Operating Lease. (i) Each Borrower shall (a) promptly perform Lender acknowledges that Borrower has leased the Property and observe all the operation of the covenants required Property to the Operating Tenant pursuant to the Operating Lease. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Operating Lease on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Operating Lease on the part of Borrower to be performed or observed by it to be promptly performed or observed on behalf of Operating Tenant, to the end that the rights of Borrower in, to and under the Operating Leases Lease shall be kept unimpaired and do all things necessary free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to preserve enter upon the Property at any time and from time to keep unimpaired its material rights thereunder; (b) promptly notify Lender time upon prior notice to Borrower and during business hours or such other reasonable times only, for the purpose of taking any material default such action. If the Operating Tenant under any the Operating Lease of which it is aware; (c) promptly shall deliver to Lender a copy of any notice sent to Borrower of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or other material notice omitted to be taken by Lender in good faith, in reliance thereon.
(b) Borrower and Operating Tenant hereby agree that any requirement of consent on behalf of Borrower (as lessor) under any the Operating Lease delivered with respect to any Operating Lessee by Borrower; proposed action thereunder shall also be subject to the prior written consent of Lender.
(dc) Borrower shall promptly give notice to notify Lender of the giving of any notice to Operating Tenant of any material default by Operating Tenant in the performance or information that Borrower receives which indicates that an Operating Lessee is terminating its observance of any of the terms, covenants or conditions of the Operating Lease or that any on the part of Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required Tenant to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any timeand deliver to Lender a true copy of each such notice. In addition, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect notwithstanding anything contained herein to the applicable Individual Property or has otherwise taken title to such Individual Propertycontrary, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of LenderLender and, which after the occurrence of a Securitization, delivery of a Rating Confirmation, (i) amend, modify or waive any provisions of the Operating Lease other than amendments, modifications, or waivers of ministerial terms that do not modify, amend or waive any material economic terms or any other material terms of the Operating Lease, (ii) exercise its right to consent shall not be unreasonably withheld: (a) surrender, terminate or cancel to any assignment of the Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual sublet of the Property, providedexcept as set forth in Section 5.1.17 hereof, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (ciii) enter intoterminate, renew, amend, modify, waive any provisions permit the termination of, reduce Rents under, or shorten the term of any Operating Lease.accept surrender of
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Operating Lease. (i) Each Borrower shall (a) promptly perform Each of Borrower and observe Operating Lessee hereby agree that the Operating Lease and all right, title and interest of Operating Lessee thereunder are and shall be subject and subordinate to the lien of the covenants required Security Instrument and the Loan, including, without limitation, any and all fees and reimbursable expenses and other sums payable to be performed and observed by it Borrower under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(iib) If at any time, Upon (Aa) an Operating Lessee shall become insolvent or the occurrence of a debtor in a bankruptcy proceeding Default or (Bb) a foreclosure of the Security Instrument or the acceptance by Lender or its designee has taken title to an Individual Property by foreclosure or of a deed in lieu of foreclosure, has become notwithstanding the rights of Lender (or its successor) under subsection (c) below, Lender (or its successor) may in its sole and absolute discretion, elect to terminate the Operating Lease, and Operating Lessee agrees that such termination may be made without payment of any termination fees, liquidated damages or other fees and charges under the Operating Lease. Upon any such termination of the Operating Lease by Lender (or its successor), Operating Lessee shall promptly remit to Lender (or its successor) an accounting of, and all sums then held in, any accounts maintained by Operating Lessee under the Operating Lease. Operating Lessee hereby acknowledges that none of such sums shall be delivered to Borrower upon any such termination of the Operating Lease by Lender (or its successor). Upon any such termination, Operating Lessee shall afford to Lender (or its successor) all rights and benefits provided to Operating Lessee under the Operating Lease, including, without limitation, cooperating with and assisting Lender (or its successor) to effect a mortgagee-in-possessionsmooth transition of operational control, has appointed and assigning to Lender (or its successor) all operating licenses and permits for the Property then issued in Operating Lessee’s name and which may be assigned or transferred. If such assignment of licenses and permits is not permitted under applicable law, Operating Lessee shall cooperate with, and provide assistance to, Lender (or its successor) in its efforts to obtain food, liquor and other licenses and permits for the normal use and operation of the Property. Upon the written request of Lender (or its successor), Operating Lessee shall periodically execute and deliver a receiver statement, in a form reasonably satisfactory to Lender (or its successor), reaffirming Operating Lessee’s obligation to attorn as set forth in this Section 8.31.
(c) To the extent Operating Lessee’s interest in the Operating Lease is not merged with respect title to the applicable Individual Property at foreclosure or otherwise, Operating Lessee agrees that, upon a foreclosure of the Security Instrument or the acceptance by Lender of a deed in lieu of foreclosure, provided that the Operating Lease has not expired or otherwise taken title been earlier terminated in accordance with its terms for reasons other than such foreclosure, Operating Lessee shall attorn to such Individual PropertyLender (or its successor), Lender as the case may be, and shall have remain bound by all of the absolute right to terms, covenants and conditions of the Operating Lease, for the balance of the remaining term thereof (and any renewals thereof which may be effected in accordance with the Operating Lease) with the same force and effect as if Lender (or its successor) were the landlord under the Operating Lease and without the payment by Lender (or its successor) of any fees arising from such succession to the interests of Borrower. Such attornment shall be effective and self-operative as an agreement between Operating Lessee and Lender (or its successor) without the execution of any further instruments on the part of any party; provided, however, that at Lender’s (or its successor’s) request, Operating Lessee shall execute an instrument confirming such attornment.
(d) So long as the Operating Lease remains fully subordinate to the Lien of the Security Instrument, Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate be permitted to amend the applicable Operating Lease under and in accordance with to (i) extend the terms term of the applicable SubordinationOperating Lease, Attornment and Security Agreement.
(ii) increase the rent payable thereunder or (iii) Borrower shall not, without reduce the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leaserent payable thereunder.
Appears in 2 contracts
Samples: Loan Agreement (Strategic Hotels & Resorts, Inc), Loan Agreement (Strategic Hotels & Resorts, Inc)
Operating Lease. (i) Each Borrower shall cause Mortgage Borrower and Property Owner to, (a) cause the hotel located on each Individual Property to be operated pursuant to the Operating Lease (which may be assumed as contemplated by a Restructuring); (b) promptly perform and and/or observe all of the covenants material covenants, agreements and obligations required to be performed and observed by it Mortgage Borrower and Property Owner under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder, subject to a Restructuring; (bc) promptly notify Lender of any material default under any the Operating Lease of which it is awareLease; (cd) promptly deliver to Lender a copy of any notice of default or other material notice each financial statement, business plan, capital expenditures plan, notice, report and estimate received by Mortgage Borrower and Property Owner under any the Operating Lease delivered to any Operating Lessee by BorrowerLease; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce in a commercially reasonable manner the performance and observance of all of the material covenants and agreements required to be performed and and/or observed by the Operating Lessee under the applicable Operating Lease.
; (iif) If at any time, (A) an cause Operating Lessee shall become insolvent to deposit all Rents from the Properties into the related Property Account or a debtor in a bankruptcy proceeding or Clearing Account; and (Bg) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and cause Operating Lessee shall reasonably cooperate to conduct its business and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and operations in accordance with the terms of this Agreement, the applicable Subordination, Attornment Senior Mezzanine Loan Agreement and Security Agreement.
(iii) the Mortgage Loan Agreement as if it were a Borrower shall not, without the prior written consent of Lender, which consent shall hereunder and thereunder and not be unreasonably withheld: (a) surrender, terminate allow or cancel any Operating Lease or otherwise replace any permit Operating Lessee or enter into to take any other operating lease with respect to any Individual Property, provided, however, at the end of the term actions that Borrower, Senior Mezzanine Borrower, Mortgage Borrower and Property Owner are prohibited from taking pursuant to the terms of each Operating Leasethis Agreement, the applicable Borrower may renew such Operating Lease Senior Mezzanine Loan Agreement or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms Mortgage Loan Agreement, as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leaseapplicable.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC)
Operating Lease. (i) Each Borrower shall (a) promptly perform Lender acknowledges that Mortgage Borrower has leased the Property and observe all the operation of the covenants required Property to the Operating Tenant pursuant to the Operating Lease. If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of the Operating Lease on the part of Mortgage Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower to be performed or observed by it to be promptly performed or observed on behalf of Operating Tenant, to the end that the rights of Mortgage Borrower in, to and under the Operating Leases Lease shall be kept unimpaired and do all things necessary free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to preserve enter upon the Property at any time and from time to keep unimpaired its material rights thereunder; (b) promptly notify Lender time upon prior notice to Borrower and Mortgage Borrower and during business hours or such other reasonable times only, for the purpose of taking any material default such action. If the Operating Tenant under any the Operating Lease of which it is aware; (c) promptly shall deliver to Lender a copy of any notice sent to Mortgage Borrower of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or other material notice omitted to be taken by Lender in good faith, in reliance thereon.
(b) Subject to the terms of the Mortgage Loan Agreement, Borrower and Operating Tenant hereby agree that any requirement of consent on behalf of Mortgage Borrower (as lessor) under any the Operating Lease delivered with respect to any Operating Lessee by Borrower; proposed action thereunder shall also be subject to the prior written consent of Lender.
(dc) Borrower shall, or shall cause Mortgage Borrower to, promptly give notice to notify Lender of the giving of any notice to Operating Tenant of any material default by Operating Tenant in the performance or information that Borrower receives which indicates that an Operating Lessee is terminating its observance of any of the terms, covenants or conditions of the Operating Lease or that any on the part of Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required Tenant to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any timeand deliver to Lender a true copy of each such notice. In addition, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect notwithstanding anything contained herein to the applicable Individual Property or has otherwise taken title to such Individual Propertycontrary, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, and shall not permit or cause Mortgage Borrower to, without the prior written consent of LenderLender and, which after the occurrence of a Securitization, delivery of a Rating Confirmation, (i) amend, modify or waive any provisions of the Operating Lease other than amendments, modifications, or waivers of ministerial terms that do not modify, amend or waive any material economic terms or any other material terms of the Operating Lease, (ii) exercise its right to consent shall not be unreasonably withheld: (a) surrender, terminate or cancel to any assignment of the Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual sublet of the Property, providedor (iii) terminate, howeverpermit the termination of, at the end or accept surrender of all or any portion of the term space demised under the Operating Lease other than (A) a termination in connection with a release of each an Individual Property or a substitution of a Substitution Property, pursuant to and as defined in Sections 2.5 and 2.6, respectively, hereof, and pursuant to the Mortgage Loan Agreement, or (B) a termination by Mortgage Borrower due to a payment default by the Operating Tenant under the Operating Lease, . In the applicable Borrower may renew such event that the Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms has been terminated as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.permitted in this Section 5.1.24
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality Corp)
Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s 's right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 2 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Operating Lease. (i) Each Borrower shall (a) promptly perform Lender acknowledges that Borrower has leased the Property and observe all the operation of the covenants required Property to the Operating Tenant pursuant to the Operating Lease. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Operating Lease on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Operating Lease on the part of Borrower to be performed or observed by it to be promptly performed or observed on behalf of Operating Tenant, to the end that the rights of Borrower in, to and under the Operating Leases Lease shall be kept unimpaired and do all things necessary free from default. Lender and any person designated by Lender shall have, and are hereby granted, the right to preserve enter upon the Property at any time and from time to keep unimpaired its material rights thereunder; (b) promptly notify Lender time upon prior notice to Borrower and during business hours or such other reasonable times only, for the purpose of taking any material default such action. If the Operating Tenant under any the Operating Lease of which it is aware; (c) promptly shall deliver to Lender a copy of any notice sent to Borrower of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or other material notice omitted to be taken by Lender in good faith, in reliance thereon.
(b) Borrower and Operating Tenant hereby agree that any requirement of consent on behalf of Borrower (as lessor) under any the Operating Lease delivered with respect to any Operating Lessee by Borrower; proposed action thereunder shall also be subject to the prior written consent of Lender.
(dc) Borrower shall promptly give notice to notify Lender of the giving of any notice to Operating Tenant of any material default by Operating Tenant in the performance or information that Borrower receives which indicates that an Operating Lessee is terminating its observance of any of the terms, covenants or conditions of the Operating Lease or that any on the part of Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required Tenant to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any timeand deliver to Lender a true copy of each such notice. In addition, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect notwithstanding anything contained herein to the applicable Individual Property or has otherwise taken title to such Individual Propertycontrary, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of LenderLender and, which after the occurrence of a Securitization, delivery of a Rating Confirmation, (i) amend, modify or waive any provisions of the Operating Lease other than amendments, modifications, or waivers of ministerial terms that do not modify, amend or waive any material economic terms or any other material terms of the Operating Lease, (ii) exercise its right to consent shall not be unreasonably withheld: (a) surrender, terminate or cancel to any assignment of the Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual sublet of the Property, providedexcept as set forth in Section 5.1.17 hereof, howeveror (iii) terminate, at permit the end termination of, or accept surrender of all or any portion of the term of each Operating Lease, space demised under the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; other than (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.A)
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Operating Lease. (a) Except as provided in Section 5.1.22 of this Agreement, Borrower shall not, nor shall it permit Mortgage Borrower or Operating Lessee to, as applicable (i) Each Borrower shall (a) promptly perform breach beyond applicable notice and observe all of the covenants cure period, any material covenants, agreements and obligations required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default Mortgage Borrower or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
, (ii) If at any time, (A) enter into an assignment or sublease of Mortgage Borrower’s or Operating Lessee shall become insolvent or a debtor Lessee’s interest in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lease without Lender’s right to)prior written consent, immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordinationnot to be unreasonably withheld, Attornment and Security Agreement.
conditioned or delayed, (iii) amend or terminate or surrender the Operating Lease if such amendment or termination would be reasonably expected to have a material adverse effect on the Property or the Loan, provided, however, that for so long as the parties to the Operating Lease subordinate their respective interests therein to the Lien of the Pledge Agreement, Borrower shall be permitted to cause Mortgage Borrower to amend the Operating Lease to (a) extend the term of the Operating Lease, (b) increase the rent payable thereunder or (c) reduce the rent payable thereunder, provided that following such reduction, the base rent per annum payable under the Operating Lease shall not be less than ninety percent (90%) of the base rent per annum, payable under the Operating Lease as of the Closing Date
(b) Following the occurrence and during the continuance of an Event of Default, Borrower shall not, nor shall it permit Mortgage Borrower or Operating Lessee to, exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Operating Lease without the prior written consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion.
(c) Notwithstanding anything contained to the contrary in subsection (a)(iii) to the contrary, Mortgage Borrower shall be entitled to terminate or modify any Operating Lease upon satisfaction of the following conditions and in accordance with the terms of Section 5.2.11 of the Mortgage Loan Agreement: (i) in connection with a termination, Operating Lessee shall transfer to Borrower any property, licenses, contracts, the Management Agreement and Equipment pertaining to Operating Lessee’s business conducted at the Property, and Borrower shall provide evidence reasonably satisfactory to Lender (which shall include, but not be limited to an Officer’s Certificate) indicating that such transfer shall have been in accordance with any applicable Legal Requirements, and contractual provisions of the Management Agreement and/or contracts and where the consent to such transfer shall be required by any third parties, Borrower shall obtain such consents and provide copies of the same to Lender; (ii) Borrower shall, at its own expense, execute such documents as Lender may reasonably require to spread the Lien of the Mortgage to cover such assets or separately encumber such assets through another appropriate security instrument, and Borrower further agrees to pay Lender’s costs and expenses (including, without limitation, reasonable counsel fees) in connection with preparing and reviewing the aforesaid amendment documents; (iii) in connection with a termination, Borrower shall provide evidence reasonably satisfactory to Lender that the transfer described in clause (i) above shall not constitute a fraudulent conveyance under any applicable Legal Requirements, (iv) in connection with a termination, Borrower shall deliver, at its sole expense, executed amendments to any Loan Document to which Operating Lessee was a party reflecting the termination of the Operating Lease and Borrower further agrees to pay Lender’s reasonable costs and expenses actually incurred (including, without limitation, reasonable counsel fees) in connection with preparing and reviewing the aforesaid amendment documents; and (v) Borrower shall deliver reasonably satisfactory evidence to Lender indicating that any such termination of the Operating Lease shall not be unreasonably withheld: (a) surrenderlikely to cause a material adverse effect on Borrower’s, terminate Mortgage Borrower’s or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Lessee’s financial condition, the value of the Pledged Collateral, the Property, providedthe Loan or Net Operating Income, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leasedetermined by Lender.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Strategic Hotels & Resorts, Inc), Mezzanine Loan Agreement (Strategic Hotels & Resorts, Inc)
Operating Lease. (a) Except as provided in Section 5.1.24 of this Agreement, Borrower shall not permit Mortgage Borrower or Operating Company to, as applicable (i) Each Borrower shall (a) promptly perform breach any material covenants, agreements and observe all of the covenants obligations required to be performed and observed by it Mortgage Borrower or Operating Company under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
, (ii) If at any time, (A) enter into an assignment or sublease of Operating Lessee shall become insolvent or a debtor Company’s interest in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lease without Lender’s right to)prior written consent, immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate terminate, cancel, amend or cancel modify in any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with material respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (biv) reduce or consent to the reduction of the term of (or permit the reduction or consent to the reduction) the Operating Lease; (v) increase or consent to the increase of the amount of any rent, fees or other charges payable under the Operating Lease or permit Operating Company to accrue rent under the Operating Lease; or (vi) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Operating Lease in any material respect.
(b) Following the occurrence and during the continuance of an Event of Default, Borrower shall not permit Mortgage Borrower or Operating Company to, exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Operating Lease without the prior written consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion.
(c) enter intoNotwithstanding anything contained to the contrary in subsection (a)(iii), renew, amend, modify, waive any provisions of, reduce Rents under, Mortgage Borrower shall be entitled to terminate or shorten modify the term Operating Lease upon satisfaction of any Operating Leasethe conditions and in accordance with the terms of Section 5.2.11 of the Mortgage Loan Agreement.
(d) Any Borrower request for Lender’s consent under subclauses (iii) through (v) of clause (a) above shall be subject to the Deemed Approval Standard.
Appears in 2 contracts
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.), Senior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.)
Operating Lease. (i) Each Borrower shall (a) promptly perform Operating Lessee shall comply with the affirmative and observe all negative covenants relating to the Operating Lessee contained in this Agreement, and no Default hereunder shall be excused by virtue of the covenants required fact that such Default was caused by Operating Lessee. Lender acknowledges that Operating Lessee is not liable for the Debt.
(b) Notwithstanding anything to be performed and observed by it under the contrary contained herein, Borrower shall cause the Operating Leases and do all things necessary Lease to preserve and remain in effect in accordance with its terms so long as any portion of the Debt is outstanding; provided, however, that Borrower shall have the right to keep unimpaired its material rights thereunderterminate the Operating Lease, or permit the Operating Lease to expire, if: (a) no Event of Default is then continuing or would result therefrom; (b) promptly notify Lender all of any material default Operating Lessee’s tangible and intangible assets (including, without limitation, all of Operating Lessee’s right, title and interest in, to and under any Operating Lease of which it is awarethe Approved Management Agreement and all licenses, permits, contract rights and FF&E) shall have been transferred to Borrower in a manner reasonably satisfactory to Lender, and, if requested by Lender, reasonably satisfactory legal opinions shall have been delivered with respect thereto; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrowerno Material Adverse Effect would result therefrom; and (d) promptly give notice to without duplication, Borrower shall have paid all reasonable out-of-pocket costs and expenses of Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (eincluding reasonable attorney’s fees) promptly enforce the performance and observance of all of the material covenants required to be performed and observed incurred by the Operating Lessee under the applicable Operating LeaseLender in connection therewith.
(iic) If at Notwithstanding anything to the contrary herein or in any timeother Loan Documents or in the Operating Lease, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual upon conveyance of the Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possessionLender may, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (at its sole option and Borrower and regardless of whether Operating Lessee shall reasonably cooperate and not is in any way hinder, delay default or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance compliance with the terms of the applicable SubordinationOperating Lease, Attornment terminate the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon such conveyance or such later date as Lender shall determine in its sole discretion. In addition, upon acceleration of the Loan, Lender may, at its sole option and Security Agreementregardless of whether Operating Lessee is in default or compliance with the terms of the Operating Lease, deliver a termination notice to Borrower and Operating Lessee terminating the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon the conveyance of the Property by foreclosure or deed in lieu of foreclosure.
(iiid) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect hereby consents to any Individual Propertythe Loan and acknowledges that it derives substantial benefit from the making thereof. Borrower acknowledges that, provided, however, at pursuant to the end of the term of each Operating Lease, all amounts remitted to Lender or deposited into the applicable Borrower may renew such Operating Lease Cash Management Account by the Approved Property Manager or enter into a replacement Operating Lease with Operating Lessee on substantially shall be credited against any rent payable by the same terms as Operating Lessee to Borrower under the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 1 contract
Operating Lease. (i) Each Neither Borrower nor Op Co Pledgor shall, and neither shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default permit Mortgage Borrower or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed: (ai) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, Property or the Properties; provided, however, at the end of the term of each any Operating Lease, the applicable Borrower may cause Mortgage Borrower to renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that provided Lender shall have the right to approve any other material change thereto; (bii) reduce or consent to the reduction of the term of any Operating Lease; or (ciii) enter into, renew, amend, modify, waive any material provisions of, increase or reduce Rents the rents under, or shorten the term of of, any Operating Lease. Notwithstanding the foregoing provisions of this Section 4.2.19 or anything to the contrary contained in Section 4.1.26, Borrower and Op Co Pledgor shall have the right, without the consent of Lender, to cause Mortgage Borrower and Operating Lessee to amend the Operating Lease upon the release of a Release Property pursuant to the terms of this Agreement to terminate the Operating Lease with respect to such Release Property being released.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hersha Hospitality Trust)
Operating Lease. (a) Each of Borrower and Operating Lessee shall (i) Each Borrower shall (a) promptly perform and observe all of the material covenants required to be performed and observed by it under the applicable Operating Leases Lease in accordance with the terms thereof and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender of any material default under any Operating Lease of which it is aware; (ciii) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by BorrowerBorrower or to Borrower by Operating Lessee; (div) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its any Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (ev) promptly enforce in a commercially reasonable manner the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee or Borrower, as applicable, under the applicable Operating Lease.
(iib) If at Each of Borrower and Operating Lessee hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower, as landlord and Operating Lessee, as tenant, as applicable, under each Operating Lease to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease in any timematerial respect subject only to the rights granted to Borrower and Operating Lessee herein and in the other Loan Documents. Each of Borrower and Operating Lessee agrees not to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease, and, any such surrender, termination, cancellation, modification, change, supplement, alteration or amendment not permitted pursuant to the foregoing terms of this Section 4.1.26 shall be void and of no force or effect.
(Ac) If, during the continuance of an Event of Default, Operating Lessee shall become insolvent default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder, 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 debtor in a bankruptcy proceeding reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.1.26, and without waiving or (B) Lender or releasing Operating Lessee from any of its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to obligations under this Agreement and the applicable Individual Property or has otherwise taken title to such Individual Propertyother Loan Documents, Lender shall have the absolute right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Borrower to Operating Lessee, as tenant under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Security Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(d) If, during the continuance of an Event of Default, Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Borrower, as landlord thereunder, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to 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 Section 4.1.26, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Borrower, as landlord under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Security Instrument and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) In the event of the bankruptcy, reorganization or insolvency of Borrower or Operating Lessee, any attempt by Borrower or Operating Lessee to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Borrower or Operating Lessee to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Borrower and Operating Lessee shall reasonably cooperate each hereby expressly releases, assigns, relinquishes and not surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any way hindermaterial respect, delay either orally or otherwise interfere in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower or Operating Lessee, and any attempt on the part of Borrower or Operating Lessee to exercise any such right without the consent of Lender shall be null and void. Each of Borrower and Operating Lessee hereby irrevocably appoints Lender as its true and lawful attorney-in-fact which power of attorney shall be coupled with Lender’s an interest, for the purpose of exercising its rights pursuant to Section 365(h) of the U.S. Bankruptcy Code or any successor to such Section (i) to obtain for the benefit of Borrower or Operating Lessee or Lender a right to)to possession or statutory term of years derived from or incident to such Operating Lease, immediately terminate the applicable or (ii) to treat such Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreementas terminated.
(iiif) Borrower Notwithstanding the rejection of the Operating Lease by Borrower, as debtor in possession, or by a trustee for Borrower, pursuant to Section 365 of the U.S. Bankruptcy Code, neither the Lien of the Security Instrument nor Lender’s rights with respect to any Operating Lease shall notbe affected or impaired by reason thereof. In the event that Operating Lessee shall remain in possession of any Property following a rejection of any Operating Lease by Borrower, as debtor in possession, or by a trustee for Borrower, Operating Lessee agrees that it shall not exercise any right of offset against the rent payable under such Operating Lease, pursuant to Section 365(h)(2) of the U.S. Bankruptcy Code, without the prior written consent of LenderLender thereto.
(g) Lender shall have the right, which consent but shall not be unreasonably withheld: (a) surrenderunder no obligation, terminate to exercise on behalf of Borrower or cancel Operating Lessee any renewal or extension options under each Operating Lease or otherwise replace any if Borrower and/or Operating Lessee shall fail to exercise any such options. Operating Lessee hereby absolutely and unconditionally assigns and grants to Lender Operating Lessee’s irrevocable power of attorney, coupled with an interest, to exercise any renewal or enter into extension options under each Operating Lease on behalf of and in the name of Operating Lessee following Operating Lessee’s failure to do so, and during the continuance of an Event of Default, to take at any time any or all other operating lease with respect to any Individual Property, provided, however, at actions on behalf of Operating Lessee required for the end of the term preservation of each Operating Lease. Borrower hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, the applicable Borrower may renew such coupled with an interest, to exercise any renewal or extension options under each Operating Lease on behalf of and in the name of Borrower following Borrower’s failure to do so, and to take at any time following the occurrence and during the continuance of an Event of Default any or enter into a replacement Operating Lease with Operating Lessee all other actions on substantially behalf of Borrower required for the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction preservation of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any each Operating Lease.
(h) In connection with any Securitization or other sale, assignment, transfer or participation of all or any portion of the Loan, Operating Lessee and Borrower shall within fifteen (15) days after request by Lender, execute, acknowledge and deliver a statement certifying the items listed in subsections (a)-(h) of this Section 4.1.26, with such exceptions as shall be necessary to cause such statement to be factually correct in all material respects.
Appears in 1 contract
Operating Lease. (a) Except as provided in Section 5.1.24 of this Agreement, Borrower shall not, nor shall it permit Operating Company to, as applicable (i) Each Borrower shall (a) promptly perform breach any material covenants, agreements and observe all of the covenants obligations required to be performed and observed by it Operating Company under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
, (ii) If at any time, (A) enter into an assignment or sublease of Operating Lessee shall become insolvent or a debtor Company’s interest in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lease without Lender’s right to)prior written consent, immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate terminate, cancel, amend or cancel modify in any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with material respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (biv) reduce or consent to the reduction of the term of (or permit the reduction or consent to the reduction) the Operating Lease; (v) increase or consent to the increase of the amount of any rent, fees or other charges payable under the Operating Lease or permit Operating Company to accrue rent under the Operating Lease; or (vi) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Operating Lease in any material respect.
(b) Following the occurrence and during the continuance of an Event of Default, Borrower shall not, nor shall it permit Operating Company to, exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Operating Lease without the prior written consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion.
(c) enter intoNotwithstanding anything contained to the contrary in subsection (a)(iii) to the contrary, renewBorrower shall be entitled to terminate the Operating Lease upon satisfaction of the following conditions: (i) Operating Company shall transfer to Borrower any property, amendlicenses, modifycontracts, waive Franchise Agreements, Management Agreements and Equipment pertaining to Operating Company’s business conducted at the Property, and Borrower shall provide evidence satisfactory to Lender (which shall include, but not be limited to an Officer’s Certificate) indicating that such transfer shall have been in accordance with any applicable Legal Requirements, and contractual provisions of, reduce Rents under, or shorten the term of any such Franchise Agreements, the Management Agreement and/or contracts and where the consent to such transfer shall be required by any third parties, Borrower shall obtain such consents and provide copies of the same to Lender; (ii) Borrower shall, at its own expense, execute such documents as Lender may reasonably require to spread the Lien of the Mortgage to cover such assets or separately encumber such assets through another appropriate security instrument, and Borrower further agrees to pay Lender’s costs and expenses (including, without limitation, reasonable counsel fees) in connection with preparing and reviewing the aforesaid amendment documents; (iii) Borrower shall provide evidence reasonably satisfactory to Lender that the transfer described in clause (i) above shall not constitute a fraudulent conveyance under any applicable Legal Requirements, and (iv) Borrower shall deliver, at its sole expense, executed amendments to any Loan Document to which Operating LeaseCompany was a party reflecting the termination of the Operating Lease and Borrower further agrees to pay Lender’s costs and expenses (including, without limitation, reasonable counsel fees) in connection with preparing and reviewing the aforesaid amendment documents.
(d) Any Borrower request for Lender’s consent under subclauses (iii) through (v) of clause (a) above shall be subject to the Deemed Approval Standard.
Appears in 1 contract
Operating Lease. (a) Grantor hereby represents and warrants, as of the Effective Date: (i) the Operating Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as specified in Section 2.1[(g)] hereof; (ii) to the best of Grantor's knowledge, there are no material defaults under the Operating Lease by any party thereunder, and no event has occurred which but for the passage of time, or the giving of notice, or both would constitute a material default under the Operating Lease; (iii) neither Owner nor Operator, under the Operating Lease, has commenced any action or given or received any notice for the purpose of terminating the Operating Lease; (iv) to the best of Grantor's knowledge, the applicable interests of Owner and Operator in the Operating Lease are not subject to any Liens (other than Permitted Liens) superior to, or of equal priority with, this Security Instrument; (v) this Security Instrument encumbers the Operator's leasehold interest in the Property as tenant under the Operating Lease and Owner's [fee/leasehold] interest in the Property (and the Owner's interest, as landlord, in the Operating Lease); (vi) the Owner's [fee/leasehold] interest is subject and subordinate to this Security Instrument; (vii) the Operating Lease requires Owner or Operator, as applicable, to use reasonable efforts to give notice of any default by Owner or Operator to Grantee and the Operating Lease further provides that any notice of termination given under the Operating Lease is not effective against Grantee or any Secured Party unless a copy of the notice has been delivered to Grantee in the manner described in the Operating Lease; (viii) under the terms of the Operating Lease, Grantee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Operator under the Operating Lease) to cure any default under the Operating Lease, which is curable after the receipt of notice of any default, before Owner may terminate the Operating Lease; (ix) under the terms of the Operating Lease and the applicable Note Documents, taken together, any Net Loss Proceeds will be applied in accordance with the terms of the Indenture; (x) the Operating Lease does not impose restrictions on subletting; and (xi) the Operating Lease or a memorandum thereof has been duly recorded.
(b) Notwithstanding the terms of Section [__] of the Operating Lease, by its execution of this Security Instrument, Owner hereby consents to Operator entering into this Security Instrument and mortgaging and encumbering its interest in the Operating Lease in favor of Grantee hereby.
(c) The Owner and Operator hereby agree that the Operating Lease is subject and subordinate to all of the terms and provisions of this Security Instrument (including any and all extensions, renewals, replacements, refinancings, additions to, consolidations, amendments and modifications hereof) and to the rights of Grantee hereunder.
(d) Each Borrower shall of Owner and Operator hereby covenant and agree, so long as the Secured Obligations remain outstanding, to:
(ai) promptly perform and and/or observe in all material respects all of the non-monetary covenants and agreements required to be performed and observed by it under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; ;
(bii) promptly notify Lender Grantee of any material event of default under any the Operating Lease of which it is aware; Lease;
(c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (eiii) promptly enforce the performance and observance of all of the material covenants and agreements required to be performed and and/or observed by Owner or Operator, as applicable, under the Operating Lessee under Lease; and
(iv) maintain the applicable Operating LeaseLease in full force and effect while the Secured Obligations remain outstanding.
(iie) If at any time, Grantee acknowledges and agrees that the Operating Lease shall automatically terminate upon Grantee (A) an Operating Lessee shall become insolvent or its nominee or a debtor purchaser of the Property in connection with a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or pursuant to a deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect thereof) obtaining title to the applicable Individual Property pursuant to a foreclosure of this Security Instrument, deed in lieu thereof or has otherwise taken title pursuant to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms exercise of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect remedies available to any Individual Property, provided, however, at the end Grantee after an Event of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseDefault.
Appears in 1 contract
Samples: Deed of Trust (FelCor Lodging LP)
Operating Lease. (i) Each Borrower shall (a) promptly perform Each Operating Lease is in full force and observe all effect and Operating Lessee is in possession of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights premises demised thereunder; (b) promptly notify Lender neither Borrower nor Operating Lessee have entered into any other agreements that have modified, supplemented or amended any of the terms and provisions of any material Operating Lease; (c) each Operating Lease as amended (if amended) represents the entire agreement between the parties as to the premises demised thereunder; (d) no rent or other amounts due under any Operating Lease has been paid more than thirty (30) days in advance of its due date; (e) Operating Lessee has not filed any claim of offset and, to the best knowledge of Operating Lessee and Borrower, has no charge, lien or claim of offset under any Operating Lease, or otherwise, against the rents or other amounts due or to become due thereunder; (f) Operating Lessee is the owner of the “Tenant’s” or “Lessee’s” interest in each Operating Lease and Borrower is the owner of the “Landlord’s” or “Lessor’s” interest in each Operating Lease, (g) no transfer or assignment of any interest in any Operating Lease currently exists except as provided herein and pursuant to the other Loan Documents, (h) except pursuant to the Leases provided to Lender and Leases of less than twenty-five thousand (25,000) square feet, Operating Lessee has not sublet any of the Premises demised pursuant to any Operating Lease; (i) without limiting the foregoing, except as provided for herein and in the other Loan Documents, each of Operating Lessee’s and Borrower’s interest in each Operating Lease is unencumbered and other than in connection with prior financings that have been repaid or discharged or will be repaid or discharged in connection with the closing of the Loan, neither Borrower nor Operating Lessee has collaterally assigned the Operating Lease or otherwise encumbered its interests thereunder in any way; (j) neither Operating Lessee nor Borrower is in default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy and neither knows of any event which but for the passage of time or the giving of notice or both would constitute an event of default or other material notice under any Operating Lease delivered to any breach by Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an under the Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual PropertyLease; and (ek) promptly enforce the performance a true, correct and observance of all complete copy of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease together with any amendment thereto and any ancillary agreement or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right side letter related thereto, has been delivered to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseLender.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not amend or modify the Operating Lease in any way hindermanner that would reasonably be expected to have a Material Adverse Effect without the prior written consent of Lender. Additionally, delay for so long as Lender and/or Manager are reserving amounts for FF&E and/or any PIP Work, Borrower shall not require Operating Lessee to maintain the Capital Expenditure Reserve (as defined in the Operating Lease). Notwithstanding the foregoing or otherwise interfere with Lender’s anything contained herein to the contrary, Borrower and Operating Lessee shall have the right to), immediately to (i) terminate the applicable Operating Lease under at any time during the term of the Loan or (ii) elect not to extend the term of any Operating Lease at the expiration thereof (each of the foregoing, an “Operating Lease Termination”); provided that, such Operating Lease Termination does not cause a breach of any representations, warranties, and/or covenants contained in this Agreement and in accordance the other Loan Documents to the extent such representations, warranties and/or covenants do not apply to the status of the Operating Lease. In connection with the terms Operating Lease Termination, Borrower and Operating Lessee shall (at Borrower’s sole cost and expense) (a) provide evidence reasonably satisfactory to Lender of (i) the transfer of the applicable SubordinationFranchise Agreement and/or the Management Agreement, Attornment as applicable, to Borrower, (ii) the transfer of all licenses and Security Agreement.
permits to Borrower, (iii) the transfer to Borrower of all other documents and instruments required for the operation and maintenance of the Property, (b) execute any amendments to the Loan Documents as Lender may reasonably require and (c) deliver any other documents relating to the Operating Lease Modification, as may reasonably be required by Lender ((a), (b) and (c), collectively, the “Operating Lease Termination Documents”). Upon the delivery of the Operating Lease Termination Documents, Operating Lessee shall notbe released from all obligations under the Loan Documents. Notwithstanding the foregoing or anything herein to the contrary, upon the expiration of the term of any Operating Lease, Borrower and Operating Lessee shall have the right, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect Lender to any Individual Property, provided, however, at the end of extend the term of each such Operating Lease for a period of five (5) years, provided that, such extension contains the same material terms and conditions set forth in such Operating Lease, except for a modification of the applicable rent which shall be “market rent” in accordance with REIT rules requirements, which “market rent” shall be evidenced by delivery to Lender of a transfer pricing report prepared by an independent national accounting firm. Borrower may renew such and Operating Lessee shall notify and deliver a copy of any extension to Lender within five (5) days of execution. Notwithstanding anything to the contrary contained herein, to the extent Lender’s prior approval is required for any matters relating to the Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that set forth in this Section 4.1.23, Lender shall have the right ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to approve any material change thereto; or disapprove such matter, provided that such request to Lender is marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (b10) reduce or consent BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”. In the event that Lender fails to respond to the reduction of the term of matter in question within such time, Lender’s approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and documentation as may be reasonably required by Lender. No consent, review, processing, administrative or similar fee shall be due in connection with any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leasesuch approval request.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (aA) promptly perform and observe all of the material covenants required to be performed and observed by it under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bB) promptly notify Lender of any material default under any the Operating Lease of which it is awareLease; (cC) promptly deliver to Lender a copy of any notice of default or other material notice under any the Operating Lease delivered to any Operating Lessee by Borrower; (dD) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (aA) surrender, terminate or cancel any the Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change theretoLessee; (bB) reduce or consent to the reduction of the term of any the Operating Lease; or (cC) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, under or shorten the term of the Operating Lease except in the case of clauses (B) and (C) above, to the extent the foregoing could not reasonably be expected to be materially adverse to the Noteholder.
m. Assumptor acknowledges and agrees that the annual, quarterly and other financial statements and reports required or otherwise requested by Noteholder under Section 2.09 of the Security Instrument shall include statements and reports of Operating Lessee as applicable.
n. The eighth and ninth sentences in Section 5.01 shall be amended and restated in their entirety as follows: “Additionally, Borrower shall cause Operating Lessee or Manager to send each respective credit card company or credit card clearing bank with which Operating Lessee or Manager has entered into merchant’s agreements (each, a “Credit Card Company”) a direction letter in the form of Exhibit F annexed hereto and made part hereof (the “Credit Card Payment Direction Letter”) directing such Credit Card Company to make all payments due in connection with goods or services furnished at or in connection with the Property by Federal wire or through ACH directly to a bank account established by the Operating Lessee (the “Operating Lessee Rent Account”). Without the prior written consent of Lender, Borrower shall not permit Operating Lessee or Manager to (i) terminate, amend, revoke or modify any Credit Card Payment Direction Letter in any manner or (ii) direct or cause any Credit Card Company to pay any amount in any manner other than as specifically provided in the related Credit Card Payment Direction Letter.”
o. The definition of “Management Agreement” in Section 7.02(e) on page 76 of the Security Instrument is hereby modified to include that certain Assignment of and Second Amendment to Hotel Operating LeaseAgreement being executed by Operating Lessee and Manager in connection with this assumption.
Appears in 1 contract
Operating Lease. (a) Each of Borrower and Operating Lessee shall (i) Each Borrower shall (a) promptly perform and observe all of the material covenants required to be performed and observed by it under each Operating Lease in accordance with the Operating Leases terms thereof and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender of any material default under any Operating Lease of which it is aware; (ciii) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by BorrowerBorrower or to Borrower by Operating Lessee; (div) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its any Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (ev) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee or Borrower, as applicable, under the applicable each Operating Lease.
(iib) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu Each of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate hereby assigns to Lender, as further security for the payment and not in any way hinderperformance of the Debt and observance of the terms, delay or otherwise interfere with Lender’s right to)covenants and conditions of this Agreement and the other Loan Documents, immediately terminate all of the applicable rights, privileges and prerogatives of Borrower, as landlord and Operating Lessee, as tenant, as applicable, under each Operating Lease under and in accordance with to surrender the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew leasehold estates created by such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter intoterminate, renew, amendcancel, modify, waive any provisions ofchange, reduce Rents undersupplement, alter or shorten amend such Operating Lease subject only to the term of any rights granted to Borrower and Operating Lease.Lessee pursuant to this Section 5.1.32
Appears in 1 contract
Operating Lease. (a) Operating Lessee shall comply with the affirmative and negative covenants relating to the Operating Lessee contained in this Agreement, and no Default hereunder shall be excused by virtue of the fact that such Default was caused by Operating Lessee. Lender acknowledges that Operating Lessee is not liable for the Indebtedness.
(b) Notwithstanding anything to the contrary contained herein, Borrower shall cause the Operating Lease, to remain in effect in accordance with its terms so long as any portion of the Indebtedness is outstanding; provided, however, that Borrower shall have the right to terminate the Operating Lease if: (i) Each no Event of Default is then continuing or would result therefrom; (ii) all of Operating Lessee’s tangible and intangible assets (including, without limitation, all of Operating Lessee’s right, title and interest in, to and under the Approved Management Agreement and all licenses, permits, contract rights and FF&E) shall have been transferred to Borrower in a manner reasonably satisfactory to Lender, and, if requested by Lender, reasonably satisfactory legal opinions shall have been delivered with respect thereto; (iii) no Material Adverse Effect would result therefrom; and (iv) without duplication, Borrower shall have paid all reasonable out-of-pocket costs and expenses of Lender (aincluding reasonable attorney’s fees) promptly perform and observe all of the covenants required to be performed and observed incurred by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; in connection therewith.
(c) promptly deliver Notwithstanding anything to Lender a copy of the contrary herein or in any notice of default other Loan Documents or other material notice under any in the Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation Lease, upon conveyance of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possessionLender may, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (at its sole option and Borrower and regardless of whether Operating Lessee shall reasonably cooperate and not is in any way hinder, delay default or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance compliance with the terms of the applicable SubordinationOperating Lease, Attornment terminate the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon such conveyance or such later date as Lender shall determine in its sole discretion. In addition, upon acceleration of the Loan, Lender may, at its sole option and Security Agreementregardless of whether Operating Lessee is in default or compliance with the terms of the Operating Lease, deliver a termination notice to Borrower and Operating Lessee terminating the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon the conveyance of the Property by foreclosure or deed in lieu of foreclosure.
(iiid) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect hereby consents to any Individual Propertythe Loan and acknowledges that it derives substantial benefit from the making thereof. Borrower acknowledges that, provided, however, at pursuant to the end of the term of each Operating Lease, all amounts remitted to Lender or deposited into the applicable Borrower may renew such Operating Lease Cash Management Account by the Approved Property Manager or enter into a replacement Operating Lease with Operating Lessee on substantially shall be credited against any rent payable by the same terms as Operating Lessee to Borrower under the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
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Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its the Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an the Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual the Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual the Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any the Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual the Property, provided, however, at the end of the term of each the Operating Lease, the applicable Borrower may renew such the Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any the Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any the Operating Lease.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform Each Operating Lease is in full force and observe all effect and Operating Lessee is in possession of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights premises demised thereunder; (b) promptly notify Lender neither Borrower nor Operating Lessee have entered into any other agreements that have modified, supplemented or amended any of the terms and provisions of any material Operating Lease; (c) each Operating Lease as amended (if amended) represents the entire agreement between the parties as to the premises demised thereunder; (d) no rent or other amounts due under any Operating Lease has been paid more than thirty (30) days in advance of its due date; (e) Operating Lessee has not filed any claim of offset and, to the best knowledge of Operating Lessee and Borrower, has no charge, lien or claim of offset under any Operating Lease, or otherwise, against the rents or other amounts due or to become due thereunder; (f) Operating Lessee is the owner of the “Tenant’s” or “Lessee’s” interest in each Operating Lease and Borrower is the owner of the “Landlord’s” or “Lessor’s” interest in each Operating Lease, (g) no transfer or assignment of any interest in any Operating Lease exists except as provided herein and pursuant to the other Loan Documents, (h) except pursuant to the Leases provided to Lender and Leases of less than 5,000 square feet, Operating Lessee has not sublet any of the Premises demised pursuant to any Operating Lease; (i) without limiting the foregoing, except as provided for herein and in the other Loan Documents, each of Operating Lessee’s and Borrower’s interest in each Operating Lease is unencumbered and neither has collaterally assigned the Operating Lease or otherwise encumbered its interests thereunder in any way; (j) neither Operating Lessee nor Borrower is in default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy and neither knows of any event which but for the passage of time or the giving of notice or both would constitute an event of default or other material notice under any Operating Lease delivered to any breach by Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an under the Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual PropertyLease; and (ek) promptly enforce the performance a true, correct and observance of all complete copy of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease together with any amendment thereto and any ancillary agreement or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall side letter related thereto, have the right been delivered to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseLender.
Appears in 1 contract
Operating Lease. 8.29.1 The Operating Leases are in full force and effect and there is no material default, breach or violation existing thereunder by Borrower or to the best of Borrower's knowledge, any other party thereto and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation by any party thereunder. The Operating Lease Rent, and the terms and provisions of the Operating Leases, are subordinate to this Agreement and the Mortgages.
8.29.2 Neither the execution and delivery of the Loan Documents, Borrower's performance thereunder, nor the exercise of any remedies by Lender, will adversely affect Borrower's rights under the Operating Lease or any of the Licenses.
8.29.3 Notwithstanding anything to the contrary contained herein, Borrower may enter into a new operating lease with or permit a transfer of Operating Lessee's interest in the Operating Lease to TRS Lessee provided the following criteria are satisfied in Lender's reasonable discretion:
(a) TRS Lessee shall be a "Taxable REIT Subsidiary" within the meaning of Section 856(l) of the Code;
(b) Rent and other sums due and payable under the Operating Lease or any new operating lease, as applicable, shall qualify under Section 856(d)(8) of the Code;
(c) TRS Lessee (A) has entered into a new operating lease or assumed, amended and restated the Operating Lease, in either case, on substantially the same terms set forth in the TRS Lease; (B) has entered into a TRS Subordination Agreement; and (C) has entered into a Replacement Management Agreement with a Qualified Manager that (1) meets the requirements for an "eligible independent contractor" within the meaning of Section 856(d)(9) of the Code, and (2) provides that: (x) the Management Fees payable thereunder are subordinate to this Agreement and to the Mortgages, provided, however, the Management Fees due under each Replacement Management Agreement prior to termination of each such Replacement Management Agreement shall not be subordinated to this Agreement and the Mortgages if (i) Each Borrower such Management Fees, including any incentive fees, are not in excess of five percent (5.0%) of Operating Revenues for the applicable Individual Property and have not accrued for more than sixty (60) days (except in the case of incentive fees which shall not have accrued for any period of time greater than one (a1) promptly perform and observe all year, (ii) the applicable Manager is not an Affiliate of Borrower, (iii) neither Lender nor any affiliate nor nominee nor other Person, which may acquire the covenants required to be performed and observed applicable Individual Property by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender reason of any material default under any Operating Lease foreclosure, deed in lieu of which it is aware; (c) promptly deliver to Lender a copy of any notice of default foreclosure, or other material notice under proceeding brought by it, nor any Operating Lease delivered to subsequent successors, assignees or purchasers thereof and thereafter shall have any Operating Lessee by Borrower; obligation regarding the payment of such Management Fees, and (div) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of such Management Fees shall not be a Lien on the applicable Individual Property; , and (ey) promptly enforce if there is a continuing Event of Default or if the performance Anticipated Payment Date has occurred and observance of all the Loan has not been repaid, or, if at any time during the term of the material covenants required to be performed and observed by Loan, the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee manager thereunder shall become insolvent or a debtor in a any bankruptcy proceeding or insolvency proceeding, such management agreement may be terminated by Lender without penalty or fee; and
(d) TRS Lessee shall be, for so long as the Loan shall remain outstanding, (A) organized pursuant to, and in accordance with, the TRS Lessee Organizational Documents, and (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosureall material respects, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Single Purpose Entity; and
(e) Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreementreceived a TRS Non-Consolidation Opinion.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 1 contract
Samples: Loan Agreement (Equity Inns Inc)
Operating Lease. (i) Each Borrower shall (a) promptly perform Each Operating Lease is in full force and observe all effect and Operating Lessee is in possession of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights premises demised thereunder; (b) promptly notify Lender neither Mortgage Borrower nor Operating Lessee have entered into any other agreements that have modified, supplemented or amended any of the terms and provisions of any material Operating Lease; (c) each Operating Lease as amended (if amended) represents the entire agreement between the parties as to the premises demised thereunder; (d) no rent or other amounts due under any Operating Lease has been paid more than thirty (30) days in advance of its due date; (e) Operating Lessee has not filed any claim of offset and, to the best knowledge of Borrower, has no charge, lien or claim of offset under any Operating Lease, or otherwise, against the rents or other amounts due or to become due thereunder; (f) Operating Lessee is the owner of the “Tenant’s” or “Lessee’s” interest in each Operating Lease and Mortgage Borrower is the owner of the “Landlord’s” or “Lessor’s” interest in each Operating Lease, (g) no transfer or assignment of any interest in any Operating Lease by a Mortgage Loan Party or Loan Party exists except as provided herein and pursuant to the other Loan Documents and the Mortgage Loan Documents, (h) except pursuant to the Leases provided to Lender and Leases of less than 5,000 square feet, Operating Lessee has not sublet any of the Premises demised pursuant to any Operating Lease; (i) without limiting the foregoing, except as provided for herein and in the other Loan Documents and the Mortgage Loan Documents, each of Operating Lessee’s and Mortgage Borrower’s interest in each Operating Lease is unencumbered and neither has collaterally assigned the Operating Lease or otherwise encumbered its interests thereunder in any way; (j) neither Operating Lessee nor Mortgage Borrower is in default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy and neither knows of any event which but for the passage of time or the giving of notice or both would constitute an event of default or other material notice under any Operating Lease delivered to any breach by Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Mortgage Borrower receives which indicates that an under the Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual PropertyLease; and (ek) promptly enforce the performance a true, correct and observance of all complete copy of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease together with any amendment thereto and any ancillary agreement or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall side letter related thereto, have the right been delivered to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseLender.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall For so long as the Hotel is a Borrowing Base Property, (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases Lease shall be in full force and do all things necessary to preserve and to keep unimpaired its material rights thereundereffect; (b) promptly notify Lender Operating Lessee shall have (i) accepted possession of any material default all of demised premises under any the Operating Lease and (ii) commenced the payment of which it is awarerent to the extent due under the Operating Lease, and there shall be no offsets, claims or defenses to the enforcement thereof; (c) promptly deliver to Lender a copy of any notice of default or other material notice all rents due and payable under any the Operating Lease delivered to shall be paid and no portion thereof shall have been paid for any Operating Lessee by Borrowerperiod more than thirty (30) days in advance; (d) promptly give notice to Lender of any notice the rent payable under the Operating Lease shall be the amount set forth in the Operating Lease approved by Administrative Agent, and there shall be no claim or information that Borrower receives which indicates that an basis for a claim by Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Propertyfor an adjustment to such rent; and (e) promptly enforce there shall be no material default (beyond the performance and observance expiration of all of the material covenants required to be performed and observed any applicable notice, grace or cure periods) by the Operating Lessee under the applicable Operating Lease; (f) all security deposits under Operating Lease, if any, shall be as set forth in the Operating Lease; (g) Hotel Owner shall be the sole owner of the entire lessor’s interest under the Operating Lease; (h) the Operating Lease shall be the valid, binding and enforceable obligation of Hotel Owner, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and to general principles of equity; and (i) the Operating Lease shall be subordinate to the Loan Documents pursuant to its terms.”
(e) Section 6.01(a)(ii) of the Credit Agreement is hereby modified such that the ratio “1.40:1.00” therein is deleted and replaced with the ratio “1:30:1.00”.
(iif) If at any time, (ASection 6.01(a)(iii)(B) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or of the Credit Agreement is hereby deleted and replaced with “(B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to nine (and Borrower and Operating Lessee shall reasonably cooperate and not in 9) Borrowing Base Properties at any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreementtime after there are at least nine (9) Borrowing Base Properties,”.
(iiig) Borrower shall not, without Section 6.01(b)(vii) of the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, Credit Agreement is hereby modified such that the following is added at the end of thereof as a new paragraph thereto: “Notwithstanding anything contained to the term of each Operating Leasecontrary herein, the applicable Borrower may renew such Operating Lease REIT shall be permitted to make distributions for payments of fees, interest, and other payments required in connection with any Indebtedness expressly permitted under Section 6.04 hereof, provided that no Default or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender Event of Default then exists and no Default or Event of Default shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leaseresult therefrom.”
Appears in 1 contract
Operating Lease. (i) Each Borrower Hotel Owner and Operating Lessee shall cause the Operating Lease to remain in full force and effect at all times unless it is either terminated or canceled with Administrative Agent’s prior consent. Hotel Owner and Operating Lessee shall not, without the prior consent of Administrative Agent, (a) promptly perform and observe all reduce or consent to the reduction of the covenants required to be performed and observed by it under term of the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; Lease, (b) promptly notify Lender otherwise amend the terms of the Operating Lease (other than to extend or shorten the term thereof, to modify the amount of rent payable thereunder or to reflect the disposition of any material default under any Operating Lease Property disposed of which it is aware; pursuant to Article 7, in each case in order to minimize taxes in compliance with Laws generally applicable to real estate investment trusts) or (c) promptly deliver to Lender a copy of any notice of default surrender, terminate or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its cancel the Operating Lease or that enter into any other lease in substitution of the Operating Lease. Hotel Owner and Operating Lessee is otherwise discontinuing its operation acknowledge and agree that the Operating Lease shall be subject and subordinate to the Liens, terms and provisions of the applicable Individual Property; Mortgage and (e) promptly enforce the performance other Loan Documents, all amendments, supplements, restatements, replacements and observance of other modifications thereof and all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) advances made thereunder. If at any time, (Ai) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (Bii) Lender Administrative Agent or its designee has taken title to an Individual the Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual the Property, Lender Administrative Agent shall have the absolute right to (and Borrower Hotel Owner and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with LenderAdministrative Agent’s right to), immediately terminate the applicable Operating Lease. Borrowers shall deliver to Administrative Agent copies of all amendments of the Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreementpromptly after entering into them.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform Operating Lease is in full force and observe all effect and Operating Lessee is in possession of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights premises demised thereunder; (b) promptly notify Lender neither Borrower nor Operating Lessee has entered into any other agreements that have modified, supplemented or amended any of the terms and provisions of any material Operating Lease; (c) each Operating Lease (and any memorandum thereof), in each case, as amended (if amended) represents the entire agreement between the parties as to conveyance and operation of the premises demised thereunder; (d) no rent or other amounts due under any Operating Lease has been paid more than thirty (30) days in advance of its due date; (e) Operating Lessee has not filed any claim of offset and has no charge, lien or claim of offset under any Operating Lease, or otherwise, against the rents or other amounts due or to become due thereunder; (f) Operating Lessee is the owner of the “Tenant’s” or “Lessee’s” interest in each Operating Lease and Borrower is the owner of the “Landlord’s” or “Lessor’s” interest in each Operating Lease, (g) no transfer or assignment of any interest in any Operating Lease exists except as provided herein and pursuant to the other Loan Documents, (h) Operating Lessee has not sublet any of the premises demised pursuant to any Operating Lease except as provided in Section 3.1.22 hereof; (i) without limiting the foregoing, except as provided for herein and in the other Loan Documents, each of Operating Lessee’s and Borrower’s interest in each Operating Lease is unencumbered and neither has collaterally assigned the Operating Lease or otherwise encumbered its interests thereunder in any way except in connection with the Loan; (j) neither Operating Lessee nor Borrower is in default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy and neither knows of any event which but for the passage of time or the giving of notice or both would constitute an event of default or other material notice under any Operating Lease delivered to any breach by Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an under the Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual PropertyLease; and (ek) promptly enforce the performance a true, correct and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term complete copy of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right has been delivered to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseLender.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the 66 applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s 's right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 1 contract
Operating Lease. (a) Borrower shall not permit the Operating Lease, nor Xxxxxxxx's interest under the Operating Lease, either as lessor or lessee, to be assigned, transferred, pledged, mortgaged or hypothecated without the prior written approval of Xxxxxx, which may be withheld in Xxxxxx's sole and absolute discretion, except that all Leases (including Xxxxxxxx’s interest as lessor and lessee arising under the Operating Lease) shall be (and have been) assigned to Lender as security for the Loan.
(b) The Operating Lease shall not be modified or amended or altered in any way and no party thereto shall be released of the obligations imposed thereunder upon such party without in each case the prior written consent of Xxxxxx.
(c) The Operating Lease shall not be cancelled, surrendered or terminated in any way and no party thereto shall be released of the obligations imposed thereunder upon such party without in each case the prior written consent of Xxxxxx.
(d) With respect to the Operating Lease, Borrower, in its capacity as both lessee and xxxxxx under the Operating Lease covenants and agrees as follows: (i) Each Borrower shall (a) to promptly and faithfully observe, perform and observe comply with all of the material terms, covenants required and provisions thereof on its part to be Ex 10.274 observed, performed and observed by it under complied with, at the Operating Leases times set forth therein and to do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender not to do, permit, suffer or refrain from doing anything, as a result of any which, there could be a material default under any of the terms thereof or under any of the Leases; (iii) not to exercise any right or option to cancel, surrender or otherwise terminate the Operating Lease; (iv) to give Lender prompt written notice of any default by any party under the Operating Lease of which it is aware; (c) and to promptly deliver to Lender a copy copies of any each notice of default and, after the occurrence of an Event of Default, copies of all other notices, communications, plans, specifications and other similar instruments received or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Propertyin connection therewith; and (v) to furnish to Lender such information and evidence as Lender may reasonably require concerning Borrower’s due observance, performance and compliance with the terms, covenants and provisions thereof.
(e) promptly enforce Xxxxxxxx agrees that the performance Operating Lease and observance of all of the material terms, covenants required to be performed and observed by provisions thereof, and all estates, options and rights created under the Operating Lessee under Lease are hereby subordinated and made subject to the applicable Operating Leaseterms and provisions of the Loan Documents and lien of the Security Instrument (including, without limitation, all renewals, increases, modifications, spreaders, consolidations, replacements and extensions thereof).
(iif) If at any timeBorrower shall default in the performance or observance of any term, (A) an covenant or condition of the Operating Lessee Lease on the part of Borrower, as landlord or tenant thereunder, and shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title fail to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect cure the same prior to the expiration of any applicable Individual Property cure period provided thereunder, then, without limiting the generality of the other provisions of the Loan Documents, and without waiving or has otherwise taken title to such Individual Propertyreleasing Borrower from any of its obligations hereunder, Lender shall have the absolute right right, but shall be under no obligation, to (pay any sums and Borrower to perform any act or take any action as may be appropriate to cause all of the terms, covenants and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate conditions of the applicable Operating Lease to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Propertyshall be kept unimpaired and free from default, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that and Lender shall have the right full protection for any action taken or omitted to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leasebe taken by Lender in good faith.
Appears in 1 contract
Operating Lease. (a) Each of Borrower and Operating Lessee shall (i) Each Borrower shall (a) promptly perform and observe all of the material covenants required to be performed and observed by it under each Operating Lease in accordance with the Operating Leases terms thereof and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender of any material default under any Operating Lease of which it is aware; (ciii) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by BorrowerBorrower or to Borrower by Operating Lessee; (div) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its any Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (ev) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee or Borrower, as applicable, under the applicable each Operating Lease.
(iib) If at any time, (A) an Neither Borrower nor Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall notshall, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed: (ai) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, Property or the Properties; provided, however, at the end of the term of each any Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that provided Lender shall have the right to approve any other material change thereto; (bii) reduce or consent to the reduction of the term of any Operating Lease; or (ciii) enter into, renew, amend, modify, waive any provisions of, increase or reduce the Rents under, or shorten the term of, any Operating Lease. Notwithstanding the foregoing provisions of this Section 5.1.25, Borrower and Operating Lessee shall have the right, without the consent of Lender, to amend the Operating Lease as follows:
(1) upon the release of an Individual Property pursuant to the terms of this Agreement, the Operating Lease may be amended (or deemed amended) to (x) terminate the Operating Lease with respect to such Individual Property being released, and (y) reduce the amount of Minimum Rent (as defined in the Operating Lease) payable under the Operating Lease with respect to the Individual Property so released; (2) increase the amount of Percentage Rent (as defined in the Operating Lease) payable under the Operating Lease, (3) increase the amount of Minimum Rent payable under the Ground Lease and (4) in connection with a transfer permitted pursuant to the terms of Section 5.2.10(i) of this Agreement, the Operating Lease may be amended (or deemed amended) to (x) terminate the Operating Lease with respect to such Individual Property being released, and (y) reduce the amount of Minimum Rent (as defined in the Operating Lease) payable under the Operating Lease with respect to the Individual Property so transferred.
(c) Each of Borrower and Operating Lessee hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower, as landlord and Operating Lessee, as tenant, as applicable, under each Operating Lease to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease subject only to the rights granted to Borrower and Operating Lessee pursuant to this Section 5.1.25 or Section 5.2.10(i) hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 5.1.25 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder, 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 Section 5.1.25, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Borrower to Operating Lessee, as tenant under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Borrower, as landlord thereunder, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to 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 Section 5.1.25, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Borrower, as landlord under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Borrower or Operating Lessee, any attempt by Borrower or Operating Lessee to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Borrower or Operating Lessee to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Borrower and Operating Lessee each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower or Operating Lessee, and any attempt on the part of Borrower or Operating Lessee to exercise any such right without the consent of Lender shall be null and void. Each of Borrower and Operating Lessee hereby irrevocably appoints Lender as its true and lawful attorney-in-fact which power of attorney shall be coupled with an interest, for the purpose of exercising its rights pursuant to Section 365(h) of the Bankruptcy Code or any successor to such Section (i) to obtain for the benefit of Borrower or Operating Lessee or Lender a right to possession or statutory term of years derived from or incident to such Operating Lease, or (ii) to treat such Operating Lease as terminated.
(g) Notwithstanding the rejection of the Operating Lease by Borrower, as debtor in possession, or by a trustee for Borrower, pursuant to Section 365 of the Bankruptcy Code, neither the lien of the Security Instruments nor Lender’s rights with respect to any Operating Lease shall be affected or impaired by reason thereof. In the event that Operating Lessee shall remain in possession of any Property following a rejection of any Operating Lease by Borrower, as debtor in possession, or by a trustee for Borrower, Operating Lessee agrees that it shall not exercise any right of offset against the rent payable under such Operating Lease, pursuant to Section 365(h)(2) of the Bankruptcy Code, without the prior consent of Lender thereto.
(h) Lender shall have the right, but shall be under no obligation, to exercise on behalf of Borrower or Operating Lessee any renewal or extension options under each Operating Lease if Borrower and/or Operating Lessee shall fail to exercise any such options. Operating Lessee hereby absolutely and unconditionally assigns and grants to Lender Operating Lessee’s irrevocable power of attorney, coupled with an interest, to exercise any renewal or extension options under each Operating Lease on behalf of and in the name of Operating Lessee following Operating Lessee’s failure to do so, and to take at any time any or all other actions on behalf of Operating Lessee required for the preservation of each Operating Lease. Borrower hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, coupled with an interest, to exercise any renewal or extension options under each Operating Lease on behalf of and in the name of Borrower following Borrower’s failure to do so, and to take at any time following the occurrence and during the continuance of an Event of Default any or all other actions on behalf of Borrower required for the preservation of each Operating Lease.
(i) In connection with any Securitization or other sale, assignment, transfer or participation of all or any portion of the Loan and otherwise no more often than one time per calendar year, Operating Lessee and Borrower shall within fifteen (15) days after request by Lender, execute, acknowledge and deliver a statement certifying the items listed in subsections (a)-(h) of this Section 5.1.25, with such exceptions as shall be necessary to cause such statement to be factually correct in all material respects.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform Each Operating Lease is in full force and observe all effect and Operating Lessee is in possession of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights premises demised thereunder; (b) promptly notify Lender neither Mortgage Borrower nor Operating Lessee have entered into any other agreements that have modified, supplemented or amended any of the terms and provisions of any material Operating Lease; (c) each Operating Lease as amended (if amended) represents the entire agreement between the parties as to the premises demised thereunder; (d) no rent or other amounts due under any Operating Lease has been paid more than thirty (30) days in advance of its due date; (e) Operating Lessee has not filed any claim of offset and, to the best knowledge of Borrower, has no charge, lien or claim of offset under any Operating Lease, or otherwise, against the rents or other amounts due or to become due thereunder; (f) Operating Lessee is the owner of the “Tenant’s” or “Lessee’s” interest in each Operating Lease and Mortgage Borrower is the owner of the “Landlord’s” or “Lessor’s” interest in each Operating Lease, (g) no transfer or assignment of any interest in any Operating Lease by a Mortgage Loan Party, Mezzanine A Loan Party or Loan Party exists except as provided herein and pursuant to the other Loan Documents, the Mezzanine A Loan Documents and the Mortgage Loan Documents, (h) except pursuant to the Leases provided to Lender and Leases of less than 5,000 square feet, Operating Lessee has not sublet any of the Premises demised pursuant to any Operating Lease; (i) without limiting the foregoing, except as provided for herein and in the other Loan Documents, the Mezzanine A Loan Documents and the Mortgage Loan Documents, each of Operating Lessee’s and Mortgage Borrower’s interest in each Operating Lease is unencumbered and neither has collaterally assigned the Operating Lease or otherwise encumbered its interests thereunder in any way; (j) neither Operating Lessee nor Mortgage Borrower is in default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy and neither knows of any event which but for the passage of time or the giving of notice or both would constitute an event of default or other material notice under any Operating Lease delivered to any breach by Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Mortgage Borrower receives which indicates that an under the Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual PropertyLease; and (ek) promptly enforce the performance a true, correct and observance of all complete copy of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease together with any amendment thereto and any ancillary agreement or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall side letter related thereto, have the right been delivered to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseLender.
Appears in 1 contract
Operating Lease. (a) Except as provided in Section 5.1.22 of this Agreement, Borrower shall not, nor shall it permit Operating Lessee to, as applicable (i) Each Borrower shall (a) promptly perform breach beyond applicable notice and observe all of the covenants cure period, any material covenants, agreements and obligations required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease, (ii) enter into an assignment or sublease of Operating Lessee’s interest in the Operating Lease without Lender’s prior written consent, not to be unreasonably withheld, conditioned or delayed, (iii) amend or terminate or surrender the Operating Lease if such amendment or termination would be reasonably expected to have a material adverse effect on the Property or the Loan, provided, however, that for so long as the parties to the Operating Lease subordinate their respective interests therein to the Lien of the Mortgage, Borrower shall be permitted to amend the Operating Lease to (a) extend the term of the Operating Lease, (b) increase the rent payable thereunder or (c) reduce the rent payable thereunder, provided that following such reduction, the base rent per annum payable under the Operating Lease shall not be less than ninety percent (90%) of the base rent, per annum, payable under the Operating Lease as of the Closing Date.
(iib) If at any timeFollowing the occurrence and during the continuance of an Event of Default, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, nor shall it permit Operating Lessee to, exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Operating Lease without the prior written consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion.
(c) Notwithstanding anything contained to the contrary in subsection (a)(iii) to the contrary, Borrower shall not be unreasonably withheld: (a) surrender, entitled to terminate or cancel modify any Operating Lease or otherwise replace any upon satisfaction of the following conditions: (i) in connection with a termination, Operating Lessee shall transfer to Borrower any property, licenses, contracts, the Management Agreement and Equipment pertaining to Operating Lessee’s business conducted at the Property, and Borrower shall provide evidence reasonably satisfactory to Lender (which shall include, but not be limited to an Officer’s Certificate) indicating that such transfer shall have been in accordance with any applicable Legal Requirements, and contractual provisions of the Management Agreement and/or contracts and where the consent to such transfer shall be required by any third parties, Borrower shall obtain such consents and provide copies of the same to Lender; (ii) Borrower shall, at its own expense, execute such documents as Lender may reasonably require to spread the Lien of the Mortgage to cover such assets or enter into separately encumber such assets through another appropriate security instrument, and Borrower further agrees to pay Lender’s costs and expenses (including, without limitation, reasonable counsel fees) in connection with preparing and reviewing the aforesaid amendment documents; (iii) in connection with a termination, Borrower shall provide evidence reasonably satisfactory to Lender that the transfer described in clause (i) above shall not constitute a fraudulent conveyance under any other operating lease applicable Legal Requirements, (iv) in connection with respect a termination, Borrower shall deliver, at its sole expense, executed amendments to any Individual Property, provided, however, at Loan Document to which Operating Lessee was a party reflecting the end termination of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease and Borrower further agrees to pay Lender’s reasonable costs and expenses actually incurred (including, without limitation, reasonable counsel fees) in connection with Operating Lessee on substantially preparing and reviewing the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change theretoaforesaid amendment documents; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.and
Appears in 1 contract
Operating Lease. Brazos and Vari-Lite hereby declare that it is their mutual intent that for accounting purposes this Ground Lease be treated as an operating lease and not an instrument or evidence of indebtedness, and that the relationship between Brazos and Vari-Lite under this Ground Lease shall be that of lessor and lessee only. Title to and ownership of the Property shall at all times remain in Brazos and at no time become vested in Vari-Lite except in accordance with an express provision of this Ground Lease. Vari-Lite does not hereby acquire any right, equity, title or interest in or to the Property, except pursuant to the terms hereof. Vari-Lite hereby grants to Lessor a security interest in the Property and all proceeds thereof as collateral security for the payment and performance by Vari-Lite of Vari-Lite's obligations as Lessee hereunder.
(a) Brazos and Vari-Lite intend that the transactions and arrangements contemplated by this Ground Lease have a dual, rather than a single form, and that (i) Each Borrower shall for financial accounting purposes with respect to Vari-Lite (aA) promptly perform this Ground Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, and observe all (B) Vari-Lite will be treated as the lessee of the covenants required Property, but (ii) for federal, state and local income tax purposes (A) this Ground Lease will be treated as a financing arrangement (rather than a "true lease"), (B) Brazos will be treated as a lender making a loan to be performed and observed by it Vari-Lite in an amount equal to the sum of the advances under the Operating Leases Credit Agreement, which amounts are secured by the Property, and do (C) Vari-Lite will be treated as the owner of the Property and will be entitled to all things necessary tax benefits ordinarily available to preserve and to keep unimpaired its material rights thereunder; an owner of property like the Property for such tax purposes.
(b) promptly notify Lender Brazos and Vari-Lite further intend and agree that, for the purpose of securing Vari-Lite's obligations for the repayment of the advances under the Credit Agreement, (i) this Ground Lease shall also be deemed to be a deed of trust, mortgage, security agreement, assignment of rental and financing statement, and Vari-Lite hereby grants a lien and security interest upon and a collateral assignment of the Property and all proceeds thereof; (ii) the possession by Brazos or any material default of its agents of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the Uniform Commercial Code; and (iii) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Vari-Lite shall be deemed to have been given for the purpose of perfecting such security interest under any Operating applicable law. Brazos and Vari-Lite shall, to the extent consistent with this Ground Lease, take such actions as may be necessary to ensure that, to the extent this Ground Lease is deemed to create a Lien on the Property in accordance with this SECTION 3.3, such Lien shall be deemed to be a perfected Lien of which it is aware; first priority under applicable law and will be maintained as such throughout the Lease Term.
(c) promptly deliver to Lender a copy Brazos and Vari-Lite further intend and agree that in the event of any notice of default insolvency or receivership proceedings or a petition under the United States bankruptcy laws or any other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice applicable insolvency laws or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation statute of the United States of America or any State or Commonwealth thereof affecting Vari-Lite or Brazos, this Ground Lease shall be regarded as financial accommodations made by an unrelated third party to Vari-Lite for purposes of applicable Individual Property; bankruptcy and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Leaseinsolvency laws.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 1 contract
Samples: Ground Lease Agreement (Vari Lite International Inc)
Operating Lease. (a) Borrower shall cause each of Mortgage Borrower and Operating Lessee to (i) Each Borrower shall (a) promptly perform and observe all of the material covenants required to be performed and observed by it under each Operating Lease in accordance with the Operating Leases terms thereof and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender of any material default under any Operating Lease of which it is aware; (ciii) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by BorrowerMortgage Borrower or to Mortgage Borrower by Operating Lessee; (div) promptly give notice to Lender of any notice or information that Borrower or Mortgage Borrower receives which indicates that an Operating Lessee is terminating its any Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (ev) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee or Mortgage Borrower, as applicable, under the applicable each Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iiib) Borrower shall notnot cause or permit Mortgage Borrower or Operating Lessee to, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed: (ai) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, Property or the Properties; provided, however, at the end of the term of each any Operating Lease, the applicable Mortgage Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that provided Lender shall have the right to approve any other material change thereto; (bii) reduce or consent to the reduction of the term of any Operating Lease; or (ciii) enter into, renew, amend, modify, waive any provisions of, increase or reduce the Rents under, or shorten the term of, any Operating Lease. Notwithstanding the foregoing provisions of this Section 5.1.25, Borrower shall have the right to permit Mortgage Borrower and Operating Lessee to, without the consent of Lender, amend the Operating Lease as follows:
(1) upon the release of an Individual Property pursuant to the terms of this Agreement, the Operating Lease may be amended (or deemed amended) to (x) terminate the Operating Lease with respect to such Individual Property being released, and (y) reduce the amount of Minimum Rent (as defined in the Operating Lease) payable under the Operating Lease with respect to the Individual Property so released; (2) increase the amount of Percentage Rent (as defined in the Operating Lease) payable under the Operating Lease, (3) increase the amount of Minimum Rent payable under the Ground Lease and (4) in connection with a transfer permitted pursuant to the terms of Section 5.2.10(i) of this Agreement and the Mortgage Loan Agreement, the Operating Lease may be amended (or deemed amended) to (x) terminate the Operating Lease with respect to such Individual Property being released, and (y) reduce the amount of Minimum Rent (as defined in the Operating Lease) payable under the Operating Lease with respect to the Individual Property so transferred.
(c) Subject to the rights of Mortgage Lender, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower to cause Mortgage Borrower, as landlord and Operating Lessee, as tenant, as applicable, under each Operating Lease to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease subject only to the rights granted to Borrower pursuant to this Section 5.1.25 or Section 5.2.10(i) hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 5.1.25 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder, 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 Section 5.1.25, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement, the other Loan Documents and the Mortgage Loan Documents and subject to the rights of Mortgage Lender, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases and subject to the rights of Mortgage Lender, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower or Mortgage Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder, 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 Section 5.1.25, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents and subject to the rights of Mortgage Lender, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases and subject to the rights of Mortgage Lender, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, any attempt by Mortgage Borrower or Operating Lessee to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Borrower to cause Mortgage Borrower or Operating Lessee to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender, Borrower hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to cause Mortgage Borrower and Operating Lessee to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, and any attempt on the part of Borrower to cause Mortgage Borrower or Operating Lessee to exercise any such right without the consent of Lender shall be null and void.
(g) Subject to the rights of Mortgage Lender, Lender shall have the right, but shall be under no obligation, to exercise the right of Borrower to cause Mortgage Borrower or Operating Lessee to exercise any renewal or extension options under each Operating Lease if Borrower shall fail to cause Mortgage Borrower and/or Operating Lessee to exercise any such options. Subject to the rights of Mortgage Lender, Borrower hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, coupled with an interest, to cause the exercise of any renewal or extension options under each Operating Lease on behalf of and in the name of Operating Lessee following Borrower’s failure to cause Operating Lessee to do so, and to take at any time any or all other actions on behalf of Operating Lessee required for the preservation of each Operating Lease. Subject to the rights of Mortgage Lender, Borrower hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, coupled with an interest, to cause the exercise of any renewal or extension options under each Operating Lease on behalf of and in the name of Mortgage Borrower following Mortgage Borrower’s failure to do so, and to take at any time following the occurrence and during the continuance of an Event of Default any or all other actions on behalf of Borrower required for the preservation of each Operating Lease.
(h) In connection with any Securitization or other sale, assignment, transfer or participation of all or any portion of the Loan and otherwise no more often than one time per calendar year, Operating Lessee and Borrower shall within fifteen (15) days after request by Lender, execute, acknowledge and deliver a statement certifying the items listed in subsections (a)-(g) of this Section 5.1.25, with such exceptions as shall be necessary to cause such statement to be factually correct in all material respects.
Appears in 1 contract
Operating Lease. (i) Each Borrower Operating Lessee shall (a) promptly perform comply with the affirmative and observe all negative covenants relating to the Operating Lessee contained in this Agreement, and no Default hereunder shall be excused by virtue of the covenants required to be performed and observed fact that such Default was caused by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lessee. Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information acknowledges that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of not liable for the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating LeaseIndebtedness.
(ii) If at Notwithstanding anything to the contrary contained herein, Borrower shall cause the Operating Lease, to remain in effect in accordance with its terms so long as any timeportion of the Indebtedness is outstanding; provided, however, that Borrower shall have the right to terminate the Operating Lease if: (Aa) an no Event of Default is then continuing or would result therefrom; (b) all of Operating Lessee Lessee’s tangible and intangible assets (including, without limitation, all of Operating Lessee’s right, title and interest in, to and under the Approved Management Agreement and all licenses, permits, contract rights and FF&E) shall become insolvent or a debtor have been transferred to Borrower in a bankruptcy proceeding manner reasonably satisfactory to Lender, and, if requested by Lender, reasonably satisfactory legal opinions shall have been delivered with respect thereto; (c) no Material Adverse Effect would result therefrom; and (d) without duplication, Borrower shall have paid all reasonable out-of-pocket costs and expenses of Lender (including reasonable attorney’s fees) incurred by Lender in connection therewith.
(iii) Notwithstanding anything to the contrary herein or (B) Lender in any other Loan Documents or its designee has taken title to an Individual in the Operating Lease, upon conveyance of the Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possessionLender may, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (at its sole option and Borrower and regardless of whether Operating Lessee shall reasonably cooperate and not is in any way hinder, delay default or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance compliance with the terms of the applicable SubordinationOperating Lease, Attornment terminate the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon such conveyance or such later date as Lender shall determine in its sole discretion. In addition, upon acceleration of the Loan, Lender may, at its sole option and Security Agreementregardless of whether Operating Lessee is in default or compliance with the terms of the Operating Lease, deliver a termination notice to Borrower and Operating Lessee terminating the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon the conveyance of the Property by foreclosure or deed in lieu of foreclosure.
(iiiiv) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect hereby consents to any Individual Propertythe Loan and acknowledges that it derives substantial benefit from the making thereof. Borrower acknowledges that, provided, however, at pursuant to the end of the term of each Operating Lease, all amounts remitted to Lender or deposited into the applicable Borrower may renew such Operating Lease Cash Management Account by the Approved Property Manager or enter into a replacement Operating Lease with Operating Lessee on substantially shall be credited against any rent payable by the same terms as Operating Lessee to Borrower under the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 1 contract
Operating Lease. (a) Operating Lessee shall comply with the affirmative and negative covenants relating to the Operating Lessee contained in this Agreement, and no Default hereunder shall be excused by virtue of the fact that such Default was caused by Operating Lessee. Lender acknowledges that Operating Lessee is not liable for the Indebtedness.
(b) Notwithstanding anything to the contrary contained herein, Borrower shall cause each Operating Lease, to remain in effect in accordance with its terms so long as any portion of the Indebtedness is outstanding; provided, however, that Borrower shall have the right to terminate an Operating Lease if: (i) Each no Event of Default is then continuing or would result therefrom; (ii) all of such Operating Lessee’s tangible and intangible assets (including, without limitation, all of Operating Lessee’s right, title and interest in, to and under the applicable Approved Management Agreement, the applicable Approved Franchise Agreement and all licenses, permits, contract rights and FF&E) shall have been transferred to the applicable Borrower in a manner reasonably satisfactory to Lender, and, if requested by Lender, reasonably satisfactory legal opinions shall have been delivered with respect thereto; (iii) no Material Adverse Effect would result therefrom; and (iv) without duplication, Borrower shall have paid all reasonable out-of-pocket costs and expenses of Lender (aincluding reasonable attorney’s fees) promptly perform and observe all of the covenants required to be performed and observed incurred by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; in connection therewith.
(c) promptly deliver Notwithstanding anything to Lender a copy of the contrary herein or in any notice of default other Loan Documents or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by in the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or upon conveyance of a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possessionLender may, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (at its sole option and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate regardless of whether the applicable Operating Lease under and Lessee is in accordance default or compliance with the terms of the applicable SubordinationOperating Lease, Attornment terminate such Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon such conveyance or such later date as Lender shall determine in its sole discretion. In addition, upon acceleration of the Loan, Lender may, at its sole option and Security Agreementregardless of whether Operating Lessee is in default or compliance with the terms of the Operating Lease, deliver a termination notice to Borrower and Operating Lessee terminating the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon the conveyance of the Property by foreclosure or deed in lieu of foreclosure.
(iiid) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect hereby consents to any Individual Propertythe Loan and acknowledges that it derives substantial benefit from the making thereof. Borrower acknowledges that, provided, however, at pursuant to the end of the term of each Operating Lease, all amounts remitted to Lender or deposited into the applicable Borrower may renew such Operating Lease Cash Management Account by the Approved Property Manager or enter into a replacement Operating Lease with Operating Lessee on substantially shall be credited against any rent payable by the same terms as Operating Lessee to Borrower under the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.. Article VI
Appears in 1 contract
Operating Lease. SPE Owner is the owner and lessor of landlord’s interest in the Operating Lease. The Operating Lease is in full force and effect and there is no default thereunder by either party and there are no conditions that would constitute defaults thereunder. No rent under the Operating Lease has been paid more than one month in advance of its due date. All security deposits (iif any) Each Borrower shall are held by SPE Owner in accordance with applicable law. All work (aif any) promptly perform to be performed by SPE Owner and observe all TRS Lessee under the Operating Lease has been performed as required and has been accepted by TRS Lessee, and any payments, free rent, partial rent, rebate of the covenants rent or other payments, credits, allowances or abatements required to be performed and observed given by it under SPE Owner to TRS Lessee has already been received by TRS Lessee. There has been no prior sale, transfer, assignment, hypothecation or pledge of the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating rent thereunder which is outstanding. TRS Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate assigned the applicable Operating Lease under and in accordance with the terms or sublet all or any portion of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without premises demised thereby other than pursuant to a Hotel Transaction or Lease. TRS Lessee has no right or option pursuant to the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace to purchase all or any Operating Lessee part of the leased premises or enter into the building of which the leased premises are a part. All of the representations and warranties in this Article 4 and elsewhere in the Loan Documents (1) will survive for so long as any other operating lease with respect portion of the Debt remains owing to Lender and (2) will be deemed to have LOAN AGREEMENT, PAGE 18 been relied upon by Lender notwithstanding any Individual Propertyinvestigation heretofore or hereafter made by Lender or on its behalf, provided, however, at that the end of the term of each Operating Leaserepresentations, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leasewarranties and covenants set forth in Section 4.20 will survive in perpetuity.
Appears in 1 contract
Operating Lease. (a) Mortgagor hereby represents and warrants, as of the Effective Date: (i) the Operating Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as specified in Section 2.1[(g)] hereof; (ii) to the best of Mortgagor's knowledge, there are no material defaults under the Operating Lease by any party thereunder, and no event has occurred which but for the passage of time, or the giving of notice, or both would constitute a material default under the Operating Lease; (iii) neither Owner nor Operator, under the Operating Lease, has commenced any action or given or received any notice for the purpose of terminating the Operating Lease; (iv) to the best of Mortgagor's knowledge, the applicable interests of Owner and Operator in the Operating Lease are not subject to any Liens (other than Permitted Liens) superior to, or of equal priority with, this Security Instrument; (v) this Security Instrument encumbers the Operator's leasehold interest in the Property as tenant under the Operating Lease and Owner's [fee/leasehold] interest in the Property (and the Owner's interest, as landlord, in the Operating Lease); (vi) the Owner's [fee/leasehold] interest is subject and subordinate to this Security Instrument; (vii) the Operating Lease requires Owner or Operator, as applicable, to use reasonable efforts to give notice of any default by Owner or Operator to Mortgagee and the Operating Lease further provides that any notice of termination given under the Operating Lease is not effective against Mortgagee or any Secured Party unless a copy of the notice has been delivered to Mortgagee in the manner described in the Operating Lease; (viii) under the terms of the Operating Lease, Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Operator under the Operating Lease) to cure any default under the Operating Lease, which is curable after the receipt of notice of any default, before Owner may terminate the Operating Lease; (ix) under the terms of the Operating Lease and the applicable Note Documents, taken together, any Net Loss Proceeds will be applied in accordance with the terms of the Indenture; (x) the Operating Lease does not impose restrictions on subletting; and (xi) the Operating Lease or a memorandum thereof has been duly recorded.
(b) Notwithstanding the terms of Section [__] of the Operating Lease, by its execution of this Security Instrument, Owner hereby consents to Operator entering into this Security Instrument and mortgaging and encumbering its interest in the Operating Lease in favor of Mortgagee hereby.
(c) The Owner and Operator hereby agree that the Operating Lease is subject and subordinate to all of the terms and provisions of this Security Instrument (including any and all extensions, renewals, replacements, refinancings, additions to, consolidations, amendments and modifications hereof) and to the rights of Mortgagee hereunder.
(d) Each Borrower shall of Owner and Operator hereby covenant and agree, so long as the Secured Obligations remain outstanding, to:
(ai) promptly perform and and/or observe in all material respects all of the non-monetary covenants and agreements required to be performed and observed by it under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; ;
(bii) promptly notify Lender Mortgagee of any material event of default under any the Operating Lease of which it is aware; Lease;
(c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (eiii) promptly enforce the performance and observance of all of the material covenants and agreements required to be performed and and/or observed by Owner or Operator, as applicable, under the Operating Lessee under Lease; and
(iv) maintain the applicable Operating LeaseLease in full force and effect while the Secured Obligations remain outstanding.
(iie) If at any time, Mortgagee acknowledges and agrees that the Operating Lease shall automatically terminate upon Mortgagee (A) an Operating Lessee shall become insolvent or its nominee or a debtor purchaser of the Property in connection with a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or pursuant to a deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect thereof) obtaining title to the applicable Individual Property pursuant to a foreclosure of this Security Instrument, deed in lieu thereof or has otherwise taken title pursuant to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms exercise of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect remedies available to any Individual Property, provided, however, at the end Mortgagee after an Event of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseDefault.
Appears in 1 contract
Operating Lease. (a) With respect to each Operating Lease, Borrower shall (i) Each Borrower shall pay all rents, additional rents and other sums required to be paid by Borrower, under and pursuant to the provisions of each Operating Lease, (aii) promptly diligently perform and observe all of the material terms, covenants required and conditions of each Operating Lease on the part of Borrower to be performed and observed by it performed, (iii) promptly notify Lender of the giving of any notice under the applicable Operating Leases Lease to Borrower of any default by Borrower, and do all things necessary deliver to preserve Lender a true copy of each such notice within five (5) Business Days of receipt and to keep unimpaired its material rights thereunder; (biv) promptly notify Lender of any material default bankruptcy, reorganization or insolvency of the landlord under any the applicable Operating Lease or of which it is aware; (c) promptly any notice thereof, and deliver to Lender a true copy of any such notice within five (5) Business Days of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) receipt. Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, surrender the leasehold estate created by the applicable Operating Lease or terminate or cancel any Operating Lease or otherwise replace materially modify, change, supplement, alter or amend any Operating Lessee Lease, either orally or enter into in writing, and if Borrower shall default in the performance or observance of any other operating lease with respect material term, covenant or condition of any Operating Lease on the part of Borrower, and shall fail to cure the same prior to the expiration of any Individual Propertyapplicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default; provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right no such obligation to approve perform any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leasesuch action.
Appears in 1 contract
Samples: Loan Agreement (Capital Lodging)
Operating Lease. 8.30.1 The Operating Leases are in full force and effect and there is no material default, breach or violation existing thereunder by Borrower or to the best of Borrower's knowledge, any other party thereto and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation by any party thereunder. The Operating Lease Rent, and the terms and provisions of the Operating Leases, are subordinate to this Agreement and the Mortgages.
8.30.2 Neither the execution and delivery of the Loan Documents, Borrower's performance thereunder, nor the exercise of any remedies by Lender, will adversely affect Borrower's rights under the Operating Lease or any of the Licenses.
8.30.3 Notwithstanding anything to the contrary contained herein, Borrower may enter into a new operating lease with or permit a transfer of Operating Lessee's interest in the Operating Lease to a TRS Lessee provided the following criteria are satisfied in Lender's reasonable discretion:
(a) TRS Lessee shall be a "Taxable REIT Subsidiary" within the meaning of Section 856(l) of the Code;
(b) Rent and other sums due and payable under the Operating Lease or any new operating lease, as applicable, shall qualify under Section 856(d)(8) of the Code;
(c) TRS Lessee (A) has entered into a new operating lease or assumed, amended and restated the Operating Lease, in either case, on substantially the same terms set forth in the TRS Lease; (B) has entered into a TRS Subordination Agreement; and (C) has entered into a Replacement Management Agreement with a Qualified Manager that (1) meets the requirements for an "eligible independent contractor" within the meaning of Section 856(d)(9) of the Code, and (2) provides that: (x) the fees payable thereunder are subordinate to this Agreement and to the Mortgages, provided, however, the fees due under each Replacement Management Agreement prior to termination of each such Replacement Management Agreement shall not be subordinated to this Agreement and the Mortgages if (i) Each Borrower such fees, including any incentive fees, are not in excess of five percent (5.0%) of Operating Revenues for the applicable Individual Property and have not accrued for more than sixty (60) days (except in the case of incentive fees which shall not have accrued for any period of time greater than one (a1) promptly perform year), (ii) the applicable Manager is not an Affiliate of Borrower, (iii) neither Lender nor any purchaser at foreclosure or party which accepts a deed in lieu of foreclosure shall have any obligation regarding the payment of such fees, and observe all of the covenants required to (iv) such fees shall not be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of Lien on the applicable Individual Property; , and (ey) promptly enforce if there is a continuing Event of Default or if the performance Anticipated Payment Date has occurred and observance of all the Loan has not been repaid, or, if at any time during the term of the material covenants required to be performed and observed by Loan, the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee manager thereunder shall become insolvent or a debtor in a any bankruptcy proceeding or insolvency proceeding, such management agreement may be terminated by Lender without penalty or fee; and
(d) TRS Lessee shall be, for so long as the Loan shall remain outstanding, (A) organized pursuant to, and in accordance with, the TRS Lessee Organizational Documents, and (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosureall material respects, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Single Purpose Entity; and
(e) Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreementreceived a TRS Non- Consolidation Opinion.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Appears in 1 contract
Samples: Loan Agreement (Equity Inns Inc)
Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not amend or modify the Operating Lease in any way hinder, delay manner that would affect the Operating Income from the Property or otherwise interfere with Lender’s right to)security interest in the Rents from the Property. Notwithstanding the foregoing or anything contained herein to the contrary, immediately terminate the applicable Operating Lease under Borrower and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve terminate, amend, or modify the Operating Lease at any material change theretotime during the term of the Loan (“Operating Lease Modification”); provided, that such Operating Lease Modification does not cause a breach of any representations, warranties, and/or covenants contained in this Agreement and the other Loan Documents to the extent such representations, warranties and/or covenants do not apply to the status of the Operating Lease. In connection with the Operating Lease Modification which results in the termination of the Operating Lease, Borrower and Operating Lessee shall (at Borrower’s sole cost and expense) (a) provide evidence reasonably satisfactory to Lender of (i) the transfer of the Franchise Agreement and the Management Agreement to Borrower, (ii) the transfer of all licenses and permits to Borrower, and (iii) the transfer to Borrower of all other documents and instruments required for the operation and maintenance of the Property, (b) reduce or consent execute any amendments to the reduction of the term of any Operating Lease; or Loan Documents as Lender may reasonably require and (c) enter intodeliver any other documents relating to the Operating Lease Modification, renewas may reasonably be required by Lender ((a), amend(b) and (c), modifycollectively, waive any provisions ofthe “Operating Lease Termination Documents”). Upon the delivery of the Operating Lease Termination Documents, reduce Rents under, or shorten Operating Lessee shall be released from all obligations under the term of any Operating LeaseLoan Documents.
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Operating Lease. (i) Each Borrower shall (aA) promptly perform and observe all of the material covenants required to be performed and observed by it under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bB) promptly notify Lender of any material default under any the Operating Lease of which it is awareLease; (cC) promptly deliver to Lender a copy of any notice of default or other material notice under any the Operating Lease delivered to any Operating Lessee by Borrower; (dD) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (aA) surrender, terminate or cancel any the Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change theretoLessee; (bB) reduce or consent to the reduction of the term of any the Operating Lease; or (cC) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, under or shorten the term of the Operating Lease except in the case of clauses (B) and (C) above, to the extent the foregoing could not reasonably be expected to be materially adverse to the Noteholder.
m. Assumptor acknowledges and agrees that the annual, quarterly and other financial statements and reports required or otherwise requested by Noteholder under Section 2.09 of the Security Instrument shall include statements and reports of Operating Lessee as applicable.
n. The seventh and eighth sentences in Section 5.01 shall be amended and restated in their entirety as follows: “Additionally, Borrower shall cause Operating Lessee or Manager to send each respective credit card company or credit card clearing bank with which Operating Lessee or Manager has entered into merchant’s agreements (each, a “Credit Card Company”) a direction letter in the form of Exhibit F annexed hereto and made part hereof (the “Credit Card Payment Direction Letter”) directing such Credit Card Company to make all payments due in connection with goods or services furnished at or in connection with the Property by Federal wire or through ACH directly to a bank account established by the Operating Lessee (the “Operating Lessee Rent Account”). Without the prior written consent of Lender, Borrower shall not permit Operating Lessee or Manager to (i) terminate, amend, revoke or modify any Credit Card Payment Direction Letter in any manner or (ii) direct or cause any Credit Card Company to pay any amount in any manner other than as specifically provided in the related Credit Card Payment Direction Letter.”
o. The definition of “Management Agreement” in Section 7.02(e) on page 77 of the Security Instrument is hereby modified to include that certain Assignment of and First Amendment to Hotel Operating LeaseAgreement being executed by Operating Lessee and Manager in connection with this assumption.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Without Lender’s right to)prior written consent, immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (ai) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (bii) reduce or consent to the reduction of the term of the Operating Lease; (iii) increase or consent to the increase of the amount of any charges under the Operating Lease; (iv) modify, change, supplement, alter or amend the Operating Lease in any material respect or waive or release any of Borrower’s rights and remedies under the Operating Lease; or (cv) enter intowaive, renewexcuse, amendpermit or in any way release or discharge Operating Lessee of or from Operating Lessee’s material obligations, modify, waive any provisions of, reduce Rents under, or shorten covenants and/or conditions under the term of any Operating Lease.
(b) Notwithstanding anything contained to the contrary in Section 5.2.12(a)(i) above to the contrary, provided no Event of Default shall have occurred and be continuing, Borrower shall be entitled to terminate the Operating Lease upon satisfaction of the following conditions: (i) in connection with a termination, Operating Lessee shall transfer to Borrower any property, licenses, contracts, any Franchise Agreement, any Management Agreement and equipment pertaining to Operating Lessee’s business, and Borrower shall provide evidence reasonably satisfactory to Lender (which shall include, but not be limited to an Officer’s Certificate) indicating that such transfer shall have been in accordance with any applicable Legal Requirements, and contractual provisions of any such Franchise USActive 30748472.10 -88- Agreement, Management Agreement and/or contracts and where the consent to such transfer shall be required by any third parties, Borrower obtain such consents and provide copies of the same to Lender (or in the event any such license shall not be transferable, Borrower shall obtain a new license in the same form and substance as such non-transferable license). In addition, Borrower shall, at its own expense, execute such documents as Lender may reasonably require to spread the Lien of the Mortgage to cover such assets or separately encumber such assets through another appropriate security instrument, and Borrower further agrees to pay Lender’s out-of-pocket costs and expenses (including, without limitation, reasonable counsel fees) in connection with preparing and reviewing the aforesaid amendment documents, (ii) in connection with a termination, Borrower shall provide evidence reasonably satisfactory to Lender that the transfer described in the preceding sentence shall not constitute a fraudulent conveyance under any applicable Legal Requirements, (iii) in connection with a termination, Borrower shall deliver, at its sole expense, executed amendments to any Loan Document to which Operating Lessee was a party reflecting the termination of the Operating Lease and Borrower further agrees to pay Lender’s costs and expenses (including, without limitation, reasonable counsel fees) in connection with preparing and reviewing the aforesaid amendment documents, (iv) Borrower shall deliver an Officer’s Certificate that all representations and warranties contained herein shall continue to be true as of such release date (except (A) to the extent that any such representations and warranties are only made as of a specific date, and if the facts and circumstances upon which such representations and warranties are based are specific solely to a certain date, in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or (B) to the extent such representations are no longer true and correct as a result of subsequent events not caused by the actions and/or omissions of a Loan Party and such events did not separately result in a Default or Event of Default under the Loan Documents in which case Borrower shall provide an updated representation or warranty which are reasonably acceptable to Lender and the delivery of such updated representations and warranties in accordance with the terms hereunder shall not constitute a Default or Event of Default, unless such updated representations and warranties shall disclose that a Default or an Event of Default has occurred hereunder or under the other Loan Documents), (v) the Property continues to be operated under the same hotel franchise flag that it operated under immediately prior to such termination pursuant to the existing Franchise Agreement or under another hotel franchise flag pursuant to any replacement Franchise Agreement entered into in accordance with the terms of this Agreement, (vi) the Property is managed by Manager or by a Qualified Manager pursuant to the applicable Management Agreement or a Replacement Management Agreement, and (vii) each Major Lease shall continue according to its terms as a direct lease between Borrower, as landlord, and the lessee thereunder, as tenant, (viii) Lender has received such documents, agreements and opinions of counsel as Lender may reasonably require (including, without limitation, if a Securitization has occurred and to the extent required by the Approved Rating Agencies, a REMIC Opinion), and (ix) if a Securitization has occurred, Borrower shall, if requested by Lender, deliver to Lender a Rating Agency Confirmation from each of the Approved Rating Agencies that such termination shall not result in a downgrade, withdrawal or qualification of the ratings then assigned to the Securities. USActive 30748472.10 -89-
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Operating Lease. (i) Each Borrower shall (a) promptly perform and observe all So long as the Operating Lease remains fully subordinate to the Lien of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any timeMortgage, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and be permitted to amend the Operating Lease to (a) extend the term of the Operating Lease, (b) increase the rent payable thereunder or (c) reduce the rent payable thereunder, provided that, following such reduction, the base rent, per annum, payable under the Operating Lease shall not be less than ninety (90%) percent of the base rent, per annum, payable under the Operating Lease as in effect on the date hereof. Except as provided in the preceding sentence, Obligor shall not amend, modify, supplement or alter the Operating Lease in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, material respect without the prior written consent of LenderAgent, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with . With respect to any Individual Propertyamendment, providedmodification, however, at the end supplement or alteration of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease for which Agent’s consent is required, if Obligor’s request for consent shall be accompanied by a copy of the proposed amendment, modification, supplement or enter into alteration and shall include within such request for consent a replacement statement in bold face all-capitals “FAILURE OF AGENT TO DISAPPROVE THE ATTACHED OPERATING LEASE AMENDMENT WITHIN FIFTEEN (15) BUSINESS DAYS AFTER RECEIPT SHALL BE DEEMED CONSENT”, then Agent shall be deemed to have consented to such amendment, modification, supplement or alteration of the Operating Lease with Operating Lessee on substantially if Agent fails to notify Obligor of its disapproval of the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; within fifteen (b15) reduce or consent to the reduction Business Days following Agent’s receipt of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Leasesame.
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Operating Lease. (a) Each of Borrower and Op Co Pledgor shall cause each of Mortgage Borrower and Operating Lessee, respectively, to (i) Each Borrower shall (a) promptly perform and observe all of the material covenants required to be performed and observed by it under the applicable Operating Leases Lease in accordance with the terms thereof and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender of any material default under any Operating Lease of which it is aware; (ciii) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by BorrowerMortgage Borrower or to Mortgage Borrower by Operating Lessee; (div) promptly give notice to Lender of any notice or information that Mortgage Borrower receives which indicates that an Operating Lessee is terminating its any Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (ev) promptly enforce in a commercially reasonable manner the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee or Mortgage Borrower, as applicable, under the applicable Operating Lease.
(iib) If at Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, each of Borrower and Op Co Pledgor hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower to cause Mortgage Borrower, as landlord and Op Co Pledgor to cause Operating Lessee, as tenant, as applicable, under each Operating Lease to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease in any timematerial respect subject only to the rights granted to Borrower and Op Co Pledgor herein and in the other Loan Documents. Each of Borrower and Operating Lessee agrees not to permit Mortgage Borrower or Operating Lessee to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease, and, any such surrender, termination, cancellation, modification, change, supplement, alteration or amendment not permitted pursuant to the foregoing terms of this Section 4.1.26 shall be void and of no force or effect.
(Ac) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, if during the continuance of an Event of Default, Operating Lessee shall become insolvent default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder, 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 debtor in a bankruptcy proceeding reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.1.26, and without waiving or (B) Lender or releasing Op Co Pledgor from any of its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to obligations under this Agreement and the applicable Individual Property or has otherwise taken title to such Individual Propertyother Loan Documents, Lender shall have the absolute right right, but shall be under no obligation, to (pay any sums and Borrower to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee shall reasonably cooperate in, to and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable under such Operating Lease under shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the terms preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the applicable SubordinationDebt, Attornment shall be secured by the lien of the Pledge Agreement and Security Agreementthe other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(iiid) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, if, during the continuance of an Event of Default, Mortgage Borrower shall notdefault in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder, 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 Mortgage Borrower 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 Section 4.1.26, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, any attempt by Mortgage Borrower or Operating Lessee to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower or Operating Lessee to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Borrower and Op Co Pledgor each hereby expressly releases, assigns, relinquishes and surrenders unto Lender (subject to the rights of Mortgage Lender under the Mortgage Loan Documents) all of its right, power and authority (on behalf of Mortgage Borrower and Operating Lessee, respectively) to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any material respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, and any attempt on the part of Mortgage Borrower or Operating Lessee to exercise any such right without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, each of Borrower and Op Co Pledgor (on behalf of Mortgage Borrower and Op Co Pledgor, respectively) hereby irrevocably appoints Lender as its true and lawful attorney-in-fact which power of attorney shall be coupled with an interest, for the purpose of exercising its rights pursuant to Section 365(h) of the U.S. Bankruptcy Code or any successor to such Section (i) to obtain for the benefit of Mortgage Borrower or Operating Lessee or Lender a right to possession or statutory term of years derived from or incident to such Operating Lease, or (ii) to treat such Operating Lease as terminated.
(f) Notwithstanding the rejection of the Operating Lease by Mortgage Borrower, as debtor in possession, or by a trustee for Mortgage Borrower, pursuant to Section 365 of the U.S. Bankruptcy Code, neither the Lien of the Pledge Agreement nor Lender’s rights with respect to any Operating Lease shall be affected or impaired by reason thereof. In the event that Operating Lessee shall remain in possession of any Property following a rejection of any Operating Lease by Mortgage Borrower, as debtor in possession, or by a trustee for Mortgage Borrower, Op Co Pledgor agrees that it shall not permit Operating Lessee exercise any right of offset against the rent payable under such Operating Lease, pursuant to Section 365(h)(2) of the U.S. Bankruptcy Code, without the prior written consent of LenderLender thereto.
(g) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, which consent Lender shall not have the right, but shall be unreasonably withheld: (a) surrenderunder no obligation, terminate to cause Borrower or cancel Op Co Pledgor, on behalf of Mortgage Borrower or Operating Lessee any renewal or extension options under each Operating Lease or otherwise replace any if Mortgage Borrower and/or Operating Lessee shall fail to exercise any such options. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Op Co Pledgor Operating Lessee hereby absolutely and unconditionally assigns and grants to Lender Op Co Pledgor’s irrevocable power of attorney, coupled with an interest, to cause Operating Lessee to exercise any renewal or enter into extension options under each Operating Lease on behalf of and in the name of Op Co Pledgor following Operating Lessee’s failure to do so, and during the continuance of an Event of Default, to cause Operating Lessee take at any time any or all other operating lease with respect to any Individual Property, provided, however, at actions on behalf of Op Co Pledgor required for the end of the term preservation of each Operating Lease. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, the applicable Borrower may renew such hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, coupled with an interest, to cause Mortgage Borrower to exercise any renewal or extension options under each Operating Lease on behalf of and in the name of Borrower following Mortgage Borrower’s failure to do so, and to cause Mortgage Borrower to take at any time following the occurrence and during the continuance of an Event of Default any or enter into a replacement Operating Lease with Operating Lessee all other actions on substantially behalf of Borrower required for the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction preservation of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any each Operating Lease.
(h) In connection with any Securitization or other sale, assignment, transfer or participation of all or any portion of the Loan, Op Co Pledgor and Borrower shall within fifteen (15) days after request by Lender, execute, acknowledge and deliver a statement certifying the items listed in subsections (a)-(h) of this Section 4.1.26, with such exceptions as shall be necessary to cause such statement to be factually correct in all material respects.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hersha Hospitality Trust)
Operating Lease. (i) Each of Borrower and Operating Lessee shall (a) promptly perform and observe as and when required thereunder all of the material covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) Lease, promptly notify Lender Agent of any material default (beyond any applicable notice, grace or cure period) under any the Operating Lease of which it is aware; (c) and promptly deliver to Lender Agent (without duplication) a copy of any notice of a material default or other material notice under any Operating Lease delivered to any or from Borrower or Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) Lessee. If at any time, (Aa) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (Bb) Lender Agent or its designee has taken title to an Individual Property the Premises by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property Premises or has otherwise taken title to such Individual Propertythe Premises, Lender Agent shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay 62528184 82 or otherwise interfere with LenderAgent’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Mortgage. Neither Borrower shall notnor Operating Lessee shall, without the prior written consent of LenderAgent, which consent shall not be unreasonably withheld: , conditioned or delayed, (ai) surrender, terminate or cancel any the Operating Lease or otherwise replace any the Operating Lessee or enter into any other operating lease with respect to any Individual Propertythe Premises, (provided, however, at the end of the term of each the Operating Lease, the applicable Borrower and Operating Lessee may renew such the Operating Lease or enter into a replacement Operating Lease with Operating Lessee at a fair market rent required pursuant to the IRC and otherwise on substantially the same terms as the expiring Operating Lease except that Lender (but Agent shall have the right to approve material changes thereto) provided that with respect to any material change thereto; replacement Operating Lease, Borrower and Operating Lessee execute and deliver to Agent a joinder to the Mortgage on the form of the joinder set forth therein pursuant to which Operating Lessee shall subordinate the Operating Lease to the Loan Documents and xxxxx x xxxx and security interest to Agent in the Collateral, (bii) reduce or consent to the reduction of the term of any the Operating Lease; Lease or (ciii) enter into, renew, amend, modify, waive otherwise amend or modify the Operating Lease in any provisions of, reduce Rents under, or shorten the term of any Operating Leasematerial respect.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform Operating Lease is in full force and observe all effect and Operating Lessee is in possession of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights premises demised thereunder; (b) promptly notify Lender neither Mortgage Borrower nor Operating Lessee has entered into any other agreements that have modified, supplemented or amended any of the terms and provisions of any material Operating Lease; (c) each Operating Lease (and any memorandum thereof), in each case, as amended (if amended) represents the entire agreement between the parties as to conveyance and operation of the premises demised thereunder; (d) no rent or other amounts due under any Operating Lease has been paid more than thirty (30) days in advance of its due date; (e) Operating Lessee has not filed any claim of offset and has no charge, lien or claim of offset under any Operating Lease, or otherwise, against the rents or other amounts due or to become due thereunder; (f) Operating Lessee is the owner of the “Tenant’s” or “Lessee’s” interest in each Operating Lease and Mortgage Borrower is the owner of the “Landlord’s” or “Lessor’s” interest in each Operating Lease, (g) no transfer or assignment of any interest in any Operating Lease exists except as provided herein and pursuant to the other Loan Documents, (h) Operating Lessee has not sublet any of the premises demised pursuant to any Operating Lease except as provided in Section 3.1.22 hereof; (i) without limiting the foregoing, except as provided for herein and in the other Loan Documents, each of Operating Lessee’s and Mortgage Borrower’s interest in each Operating Lease is unencumbered and neither has collaterally assigned the Operating Lease or otherwise encumbered its interests thereunder in any way except in connection with the Loan or the Mortgage Loan; (j) neither Operating Lessee nor Mortgage Borrower is in default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy and neither knows of any event which but for the passage of time or the giving of notice or both would constitute an event of default or other material notice under any Operating Lease delivered to any breach by Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Mortgage Borrower receives which indicates that an under the Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual PropertyLease; and (ek) promptly enforce the performance a true, correct and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term complete copy of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right has been delivered to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseLender.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hersha Hospitality Trust)
Operating Lease. (i) Each of Fee Borrower and Leasehold Borrower shall (ai) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender of any material default under any the Operating Lease of which it is aware; (ciii) promptly deliver to Lender a copy of any notice of default each financial statement, business plan, capital expenditures plan, notice, report and estimate received or other material notice sent by it under any the Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual PropertyLease; and (eiv) promptly enforce in accordance with commercially reasonable practices the performance and observance of all of the material covenants required to be performed and observed by it under the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with . Without Lender’s right to)prior consent, immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) neither Fee Borrower nor Leasehold Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (ai) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (bii) reduce or consent to the reduction of the term of any the Operating Lease; (iii) increase or consent to the increase of the amount of any charges under the Operating Lease in any material respect, except as may be required to comply with Legal Requirements applicable to a real estate investment trust, provided that rent under the Operating Lease shall be “market rent” in accordance with real estate investment trust rules and regulations; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Operating Lease or (cv) enter into, renew, amend, modify, waive suffer or permit the occurrence of continuance a default beyond any provisions of, reduce Rents under, applicable cure period under the Operating Lease if such default permits any party thereto to terminate or shorten the term of any cancel such Operating Lease.
Appears in 1 contract
Operating Lease. (a) Borrower shall cause each of Mortgage Borrower and Operating Lessee to (i) Each Borrower shall (a) promptly perform and observe all of the material covenants required to be performed and observed by it under each Operating Lease in accordance with the Operating Leases terms thereof and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (bii) promptly notify Lender of any material default under any Operating Lease of which it is aware; (ciii) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by BorrowerMortgage Borrower or to Mortgage Borrower by Operating Lessee; (div) promptly give notice to Lender of any notice or information that Borrower or Mortgage Borrower receives which indicates that an Operating Lessee is terminating its any Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (ev) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee or Mortgage Borrower, as applicable, under the applicable each Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iiib) Borrower shall notnot cause or permit Mortgage Borrower or Operating Lessee to, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed: (ai) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, Property or the Properties; provided, however, at the end of the term of each any Operating Lease, the applicable Mortgage Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that provided Lender shall have the right to approve any other material change thereto; (bii) reduce or consent to the reduction of the term of any Operating Lease; or (ciii) enter into, renew, amend, modify, waive any provisions of, increase or reduce the Rents under, or shorten the term of, any Operating Lease. Notwithstanding the foregoing provisions of this Section 5.1.25, Borrower shall have the right to permit Mortgage Borrower and Operating Lessee to, without the consent of Lender, amend the Operating Lease as follows:
(1) upon the release of an Individual Property pursuant to the terms of this Agreement, the Operating Lease may be amended (or deemed amended) to (x) terminate the Operating Lease with respect to such Individual Property being released, and (y) reduce the amount of Minimum Rent (as defined in the Operating Lease) payable under the Operating Lease with respect to the Individual Property so released; (2) increase the amount of Percentage Rent (as defined in the Operating Lease) payable under the Operating Lease, (3) increase the amount of Minimum Rent payable under the Ground Lease and (4) in connection with a transfer permitted pursuant to the terms of Section 5.2.10(i) of this Agreement and the Mortgage Loan Agreement, the Operating Lease may be amended (or deemed amended) to (x) terminate the Operating Lease with respect to such Individual Property being released, and (y) reduce the amount of Minimum Rent (as defined in the Operating Lease) payable under the Operating Lease with respect to the Individual Property so transferred.
(c) Subject to the rights of Mortgage Lender and Mezzanine A Lender, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower to cause Mortgage Borrower, as landlord and Operating Lessee, as tenant, as applicable, under each Operating Lease to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease subject only to the rights granted to Borrower pursuant to this Section 5.1.25 or Section 5.2.10(i) hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 5.1.25 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder, 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 Section 5.1.25, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement, the other Loan Documents, the Mezzanine A Loan Documents and the Mortgage Loan Documents and subject to the rights of Mortgage Lender and Mezzanine A Lender, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases and subject to the rights of Mortgage Lender and Mezzanine A Lender, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower or Mortgage Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder, 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 Section 5.1.25, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents and subject to the rights of Mortgage Lender and Mezzanine A Lender, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases and subject to the rights of Mortgage Lender and Mezzanine A Lender, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, 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. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, any attempt by Mortgage Borrower or Operating Lessee to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Borrower to cause Mortgage Borrower or Operating Lessee to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender, Borrower hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to cause Mortgage Borrower and Operating Lessee to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, and any attempt on the part of Borrower to cause Mortgage Borrower or Operating Lessee to exercise any such right without the consent of Lender shall be null and void.
(g) Subject to the rights of Mortgage Lender and Mezzanine A Lender, Lender shall have the right, but shall be under no obligation, to exercise the right of Borrower to cause Mortgage Borrower or Operating Lessee to exercise any renewal or extension options under each Operating Lease if Borrower shall fail to cause Mortgage Borrower and/or Operating Lessee to exercise any such options. Subject to the rights of Mortgage Lender and Mezzanine A Lender, Borrower hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, coupled with an interest, to cause the exercise of any renewal or extension options under each Operating Lease on behalf of and in the name of Operating Lessee following Borrower’s failure to cause Operating Lessee to do so, and to take at any time any or all other actions on behalf of Operating Lessee required for the preservation of each Operating Lease. Subject to the rights of Mortgage Lender and Mezzanine A Lender, Borrower hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, coupled with an interest, to cause the exercise of any renewal or extension options under each Operating Lease on behalf of and in the name of Mortgage Borrower following Mortgage Borrower’s failure to do so, and to take at any time following the occurrence and during the continuance of an Event of Default any or all other actions on behalf of Borrower required for the preservation of each Operating Lease.
(h) In connection with any Securitization or other sale, assignment, transfer or participation of all or any portion of the Loan and otherwise no more often than one time per calendar year, Operating Lessee and Borrower shall within fifteen (15) days after request by Lender, execute, acknowledge and deliver a statement certifying the items listed in subsections (a)-(g) of this Section 5.1.25, with such exceptions as shall be necessary to cause such statement to be factually correct in all material respects.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform Operating Lessee shall comply with the affirmative and observe all negative covenants relating to the Operating Lessee contained in this Agreement, and no Default hereunder shall be excused by virtue of the covenants required to be performed fact that such Default was caused by Operating Lessee. Lender acknowledges that Operating Lessee is not liable for the Indebtedness; provided, however, that Operating Lessee acknowledges that Operating Lessee’s property constitutes Collateral for the Loan as set forth in the Mortgage and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; other Loan Documents.
(b) promptly notify Lender of any material default under any Notwithstanding anything to the contrary contained herein, Borrower shall cause the Operating Lease to remain in effect in accordance with its terms so long as any portion of which it the Indebtedness is aware; outstanding.
(c) promptly deliver Notwithstanding anything to Lender a copy of the contrary herein or in any notice of default other Loan Documents or other material notice under any in the Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation Lease, upon conveyance of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possessionLender may, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (at its sole option and Borrower and regardless of whether Operating Lessee shall reasonably cooperate and not is in any way hinder, delay default or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance compliance with the terms of the applicable SubordinationOperating Lease, Attornment terminate the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be effective upon such conveyance or such later date as Lender shall determine in its sole discretion. In addition, upon acceleration of the Loan, Lender may, at its sole option and Security Agreementregardless of whether Operating Lessee is in default or in compliance with the terms of the Operating Lease, deliver a termination notice to Borrower and Operating Lessee terminating the Operating Lease without payment of any termination fee, penalty or other amount, such termination to be immediately effective upon the conveyance of the Property by foreclosure or deed in lieu of foreclosure.
(iiid) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee hereby consents to the Loan and acknowledges that it derives substantial benefit from the making thereof. Borrower acknowledges that, pursuant to the Operating Lease, all amounts remitted to Lender or enter deposited into the Cash Management Account by the Approved Property Manager or Operating Lessee shall be credited against any other operating lease with rent payable by the Operating Lessee to Borrower under the Operating Lease.
(e) Operating Lessee hereby makes for and on behalf of itself each representation in Article IV relating to Operating Lessee and/or the Properties. With respect to any Individual Propertyprovision in this Agreement pursuant to which Borrower has covenanted to cause the Operating Lessee to take an action or refrain from taking an action, providedOperating Lessee hereby covenants that it shall take such action, howeveror refrain from taking such action, as the case may be (and any failure to take, or refrain from taking, such action shall be a Default hereunder).
(f) Operating Lessee hereby represents and warrants that all personal property of Operating Lessee located at the end or in any way related to any of the term Properties is owned by Operating Lessee free and clear of each all Liens whatsoever. Operating Lessee and Borrower acknowledge and agree that upon expiration or termination of the Operating Lease for any reason whatsoever (including termination of the Operating Lease absent of a default by Operating Lessee under the Operating Lease), Operating Lessee shall transfer all personal property of Operating Lessee located at or in any way related to the applicable Borrower may renew such Properties (and all agreements relating to the Properties to which Operating Lessee is a party) to (i) Lender, in the case of termination of the Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially after an Event of Default and Lender’s exercise of its rights under the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; Loan Documents or (cii) enter intoat all other times, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating LeaseBorrower.
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Operating Lease. (i) As of the Effective Date, Operating Lessee has leased the Property from Fee Borrower pursuant to the Operating Lease. Each New Borrower shall represents to Lender that, as of the Effective Date, (a) promptly perform and observe all there are no Leases at the Property other than the Operating Lease, (b) Fee Borrower is the sole owner of the covenants required to be performed entire lessor’s interest in the Operating Lease, (c) the Operating Lease is valid and observed by it enforceable against Fee Borrower and Operating Lessee as set forth therein and is in full force and effect, (d) no party under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and in default, (e) promptly enforce the performance and observance of all none of the material covenants required rents payable under the Operating Lease have been assigned or otherwise pledged or hypothecated other than as provided in the Security Instrument; (f) none of the rents have been collected for more than one (1) month in advance, (g) there exists no offsets or defenses to be performed the payment of any portion of the rents and observed by the Fee Borrower has no monetary obligation to Operating Lessee under the applicable Operating Lease, (h) the Operating Lease does not contain an option to purchase, right of first refusal to purchase or any other similar provision, and (i) there are no brokerage commissions or finder fee due and payable regarding the Operating Lease.
(ii) If at any timeEach New Borrower covenants and agrees: (a) to comply with all financial and other material terms and conditions of the Operating Lease, (Ab) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title not to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms or modify, change, supplement, alter or amend any financial or other material term of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, Operating Lease without obtaining the prior written consent of Lender, which consent shall may be withheld in the Lender's sole and absolute discretion, (c) not be unreasonably withheld: to assign, transfer or pledge (aother than to Lender) surrenderany of their respective interests in the Operating Lease to any third party, terminate (d) not to consent or cancel permit the assignment, pledge or other transfer of any right, title or interest in the Operating Lease or otherwise replace any equity interests in Operating Lessee or enter into any other operating lease with respect to any Individual Propertythird party, provided(e) not to sublease, howeverlicense or otherwise grant any of its right to use the Property to any third party in violation of the Loan Documents; (f) to pay to Lender any termination, at consent or similar type fee paid or payable to Fee Borrower in connection with any termination of the end Operating Lease (which fee shall be held by Lender as security for the Loan), (g) not to prepay or accept any prepayments of the rents, additional rents or other sums due under the Operating Lease for more than one (1) month in advance of the due dates thereof, and (h) use commercially reasonable efforts to enforce the terms and conditions of the Operating Lease despite the fact that the beneficial owners of each New Borrower may be related. Notwithstanding anything contained in this Section to the contrary, the Operating Lease may be modified or amended without the prior written consent of Lender to correct scrivener's errors and extend the term of each the Operating Lease.
(iii) Each New Borrower covenants and agrees that the Fixed Rent (as such term is defined in the Operating Lease) required to be paid by Operating Lessee to Fee Borrower on a monthly basis under the terms of the Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction be in excess of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten monthly Debt Service and monthly deposits into the term of any Operating LeaseReserve Funds collected under the Loan Documents.
Appears in 1 contract
Operating Lease. (i) Each Borrower shall (a) promptly perform Notwithstanding anything to the contrary, including in Section 4.2.6, Borrower will not modify, amend or replace the Operating Lease without Lender’s prior written consent which consent, if required pursuant to Section 2.6, shall be governed by the terms of Section 2.6. Borrower does hereby fully and observe completely in all respects subordinate the Operating Lease and all rights of any and all Borrower Parties thereunder to all rights of Lender under the Loan Documents. Without limitation, all rights of payment under the Operating Lease are hereby subordinated to Lender’s rights to receive payments under the Loan Documents, and the priority of the Operating Lease is hereby subordinated to the lien of the Mortgage. If the Mortgage is foreclosed, whether judicially or by power of sale, or if Borrower delivers a deed in lieu of foreclosure, then the Operating Lease and all of the covenants required to rights of the Borrower Parties thereunder shall be performed completely and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; forever extinguished.
(b) promptly notify Lender Notwithstanding clause (a) above, Borrower shall be entitled to amend the Operating Lease as necessary to comply with tax laws and preserve the real estate investment trust status of any material default under constituent member of Borrower, including, without limitation, to adjust the term and the operating rent payable thereunder; provided, however, that, in each case, (a) the representations set forth in Section 3.1.16 shall not be rendered untrue by virtue of any Operating Lease of which it is aware; adjustment to the operating rent payable thereunder, and (cb) promptly not later than ten (10) Business Days prior to the execution and delivery thereof, Borrower shall deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Leaseproposed amendment thereto.
(iic) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect Notwithstanding anything to the applicable Individual Property or has otherwise taken title to such Individual Propertycontrary contained herein, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of during the term of each the Loan, not later than thirty (30) days prior to the then scheduled expiration of the Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except shall demonstrate to Lender’s reasonable satisfaction that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any the Operating Lease has been extended for an additional period of not less than six (6) months pursuant to an amendment or supplement to the Operating Lease; or (c) enter into. Evidence of the foregoing shall include, renewwithout limitation, amenddocumentation effecting the exercise of the election to extend and a certificate from Borrower confirming that such term was properly extended. In connection with such evaluation, modify, waive any provisions of, reduce Rents under, or shorten Borrower shall deliver to Lender an updated certified copy of the term of any Operating Lease, together with any other evidence required to satisfy the foregoing.
Appears in 1 contract
