Common use of Prohibition Against Termination or Modification Clause in Contracts

Prohibition Against Termination or Modification. Borrower shall not (i) surrender, terminate or cancel any Management Agreement, unless (A) Borrower has advised Lender of its intention to terminate the Manager, (B) the replacement manager has delivered to Lender copies of an Assignment of Management Agreement and a cash management agreement in substantially the form of the Cash Management Agreement in each case executed by Borrower and replacement manager and (C) the replacement manager is a Qualified Manager, (ii) modify any Management Agreement in such a way that would have a material adverse effect on the use, operation or value of the Property or the ability of Borrower to pay its obligations in respect of the Loan, (iii) enter into any other agreement with any Person for such Person to act as the manager or operator of the Property, except as provided in this Section 7.2, or (iv) consent to the Transfer by the Manager of its interest under the Management Agreement except as provided in this Section 7.2, in each case without the express consent of Lender, which consent shall not be unreasonably withheld; provided, however, with respect to a new manager (other than a Qualified Manager), such consent may be conditioned upon Borrower delivering a Rating Agency Confirmation as to such new manager and management agreement. If at any time Lender consents to the appointment of a new manager, or a new manager is appointed without Lender’s consent being required, (a) such new manager and Borrower shall, as a condition of Lender’s consent, if required, execute an Assignment of Management Agreement and a cash management agreement in substantially the form of the Cash Management Agreement and (b) if such new manager is an Affiliate of Borrower, Borrower shall deliver a non-consolidation opinion acceptable to the Rating Agencies.

Prohibition Against Termination or Modification. (a) Except as set forth in clause (b) below, neither Borrower nor Operating Lessee shall not (i) surrender, terminate terminate, cancel, materially modify, renew or cancel extend any Management Agreement, unless Agreement (A) Borrower has advised Lender other than a renewal or extension of its intention to terminate the Manager, (B) the replacement manager has delivered to Lender copies of an Assignment of Management Agreement and a cash management agreement in substantially the form of the Cash Management Agreement in each case executed by Borrower and replacement manager and (C) the replacement manager is a Qualified Manageraccordance with its terms), (ii) modify any Management Agreement in such a way that would have a material adverse effect on the use, operation or value of the Property or the ability of Borrower to pay its obligations in respect of the Loan, (iii) enter into any other agreement relating to the management or operation of any Individual Property with any Person for such Person to act as the manager Manager or operator of the Propertyany other Person, except as provided in this Section 7.2, or (iviii) consent to the Transfer assignment by the any Manager of its interest under the related Management Agreement except as provided in this Section 7.2Agreement, or (iv) waive or release any of its material rights and remedies under any Management Agreement, in each case without the express consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, with respect to the appointment of a new manager (other than a Qualified Manager)manager, such consent may be conditioned upon Borrower or Operating Lessee delivering to Lender a Rating Agency Confirmation from each applicable Rating Agency as to such new manager and management agreementevidence that such replacement will not violate or cause a breach or default under any Franchise Agreement or Ground Lease to the extent such violation, breach or default (with or without the passage of time) would result in an Event of Default, and that any approvals required under any Franchise Agreement or Ground Lease to the replacement of Manager have been obtained. If at any time Lender consents to the appointment of a new manager, or a new manager is appointed without Lender’s consent being required, (a) such new manager and Borrower and Operating Lessee shall, as a condition of Lender’s consent, if required, execute an Assignment of Management Agreement and (i) a cash management agreement in form and substance reasonably acceptable to Lender, and (ii) a subordination of management agreement in a form reasonably acceptable to Lender. (b) Notwithstanding anything to the contrary herein or in the other Loan Documents (and without limiting Borrower’s and Operating Lessee’s right to replace a Manager with Lender’s consent pursuant to clause (a) above), Borrower and Operating Lessee shall have the right to replace one or more Managers with one or more Qualified Managers without Lender’s consent and without any Rating Agency Confirmation, provided that each of the following conditions shall have been satisfied: (i) Lender shall have received written notice of the intended replacement(s) not less than fifteen (15) days prior to the date(s) on which such proposed replacement(s) are to occur; (ii) As of the date of giving such notice and as of the effective date of such replacement no Event of Default shall have occurred and be continuing; (iii) Such notice shall identify the Individual Property as to which Borrower wishes to replace the Manager and the Qualified Manager with whom Borrower or Operating Lessee intends to replace the applicable Manager, and as of the date of giving such notice and as of the effective date of such replacement, (x) no such Qualified Manager shall be subject to any bankruptcy or similar insolvency proceeding, and (y) there shall have been no material adverse change in the condition of any such Qualified Manager, financial and otherwise, since the Closing Date; provided, however, that the replacement property management company identified by Borrower shall be a “Qualified Manager” for purposes of this subsection (b) only if such replacement property company does not manage more than seventy-five percent (75%) of the total number of keys of the Individual Properties; (iv) Each Qualified Manager identified by Borrower or Operating Lessee shall enter into one or more new Management Agreements, which agreements shall (A) not provide for Base Management Fees in excess of three percent (3.0%) of the monthly Operating Income for the Individual Properties managed by such Qualified Manager unless otherwise reasonably agreed by Lender in writing, and not provide for Incentive Management Fees or other compensation in excess of the market rates for such fees and other compensation, and (B) otherwise be on terms and conditions approved by Lender (which approval will not be unreasonably withheld, conditioned or delayed); provided that any new Management Agreement which satisfies clause (A) above and is in form and substance substantially the same as any existing Management Agreement by and between a Qualified Manager and the applicable Individual Borrowers or Operating Lessee that exist as of the Closing Date shall be deemed to be approved by Lender; (v) Lender shall have received evidence reasonably satisfactory to it (which may be in the form of an Officer’s Certificate) that such replacement(s) of such Manager(s) are not prohibited by and would not permit the Cash Management applicable Franchisor or the applicable Ground Lessor to terminate any Franchise Agreement or Ground Lease, and will not result in or cause any breach or default under any Franchise Agreement or Ground Lease to the extent such violation, breach or default (bwith or without the passage of time) if would result in an Event of Default, and that any approvals required under any Franchise Agreement or Ground Lease to the replacement of such new manager is an Affiliate of BorrowerManager(s) have been obtained; (vi) Concurrently with such replacement(s), Borrower or Operating Lessee shall deliver a non-consolidation opinion acceptable have paid (or escrowed in accordance with the terms of the Management Agreement(s) being replaced) any termination or transition costs and expenses, termination fees or their equivalent, to which any Manager being replaced is entitled under its Management Agreement; and (vii) Each such Qualified Manager shall enter into an assignment of management agreement and subordination of management fees which either is (A) in form and substance substantially the Rating Agenciessame as the assignment of management agreement and subordination of management fees entered into by any Qualified Manager on the Closing Date or (B) in form and substance approved by Lender (which approval will not be unreasonably withheld, conditioned or delayed).

Prohibition Against Termination or Modification. (a) Except as set forth in clause (b) below, neither Borrower nor Operating Lessee shall not (i) surrender, terminate terminate, cancel, materially modify, renew or cancel extend any Management Agreement, unless Agreement (A) Borrower has advised Lender other than a renewal or extension of its intention to terminate the Manager, (B) the replacement manager has delivered to Lender copies of an Assignment of Management Agreement and a cash management agreement in substantially the form of the Cash Management Agreement in each case executed by Borrower and replacement manager and (C) the replacement manager is a Qualified Manageraccordance with its terms), (ii) modify any Management Agreement in such a way that would have a material adverse effect on the use, operation or value of the Property or the ability of Borrower to pay its obligations in respect of the Loan, (iii) enter into any other agreement relating to the management or operation of any Individual Property with any Person for such Person to act as the manager Manager or operator of the Propertyany other Person, except as provided in this Section 7.2, or (iviii) consent to the Transfer assignment by the any Manager of its interest under the related Management Agreement except as provided in this Section 7.2Agreement, or (iv) waive or release any of its material rights and remedies under any Management Agreement, in each case without the express consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, with respect to the appointment of a new manager (other than a Qualified Manager)manager, such consent may be conditioned upon Borrower or Operating Lessee delivering to Lender a Rating Agency Confirmation from each applicable Rating Agency as to such new manager and management agreementevidence that such replacement will not violate or cause a breach or default under any Franchise Agreement or Ground Lease to the extent such violation, breach or default (with or without the passage of time) would result in an Event of Default, and that any approvals required under any Franchise Agreement or Ground Lease to the replacement of Manager have been obtained. If at any time Lender consents to the appointment of a new manager, or a new manager is appointed without Lender’s consent being required, (a) such new manager and Borrower and Operating Lessee shall, as a condition of Lender’s consent, if required, execute an Assignment of Management Agreement and (i) a cash management agreement in form and substance reasonably acceptable to Lender, and (ii) a subordination of management agreement in a form reasonably acceptable to Lender. (b) Notwithstanding anything to the contrary herein or in the other Loan Documents (and without limiting Borrower’s and Operating Lessee’s right to replace a Manager with Lender’s consent pursuant to clause (a) above), Borrower and Operating Lessee shall have the right to replace one or more Managers with one or more Qualified Managers without Lender’s consent and without any Rating Agency Confirmation, provided that each of the following conditions shall have been satisfied: (i) Lender shall have received written notice of the intended replacement(s) not less than fifteen (15) days prior to the date(s) on which such proposed replacement(s) are to occur; (ii) As of the date of giving such notice and as of the effective date of such replacement no Event of Default shall have occurred and be continuing; (iii) Such notice shall identify the Individual Property as to which Borrower wishes to replace the Manager and the Qualified Manager with whom Borrower or Operating Lessee intends to replace the applicable Manager, and as of the date of giving such notice and as of the effective date of such replacement, (x) no such Qualified Manager shall be subject to any bankruptcy or similar insolvency proceeding, and (y) there shall have been no material adverse change in the condition of any such Qualified Manager, financial and otherwise, since the Closing Date; provided, however, that the replacement property management company identified by Borrower shall be a “Qualified Manager” for purposes of this subsection (b) only if such replacement property company does not manage more than seventy-five percent (75%) of the total number of keys of the Individual Properties; (iv) Each Qualified Manager identified by Borrower or Operating Lessee shall enter into one or more new Management Agreements, which agreements shall (A) not provide for Base Management Fees in excess of three percent (3.0%) of the monthly Operating Income for the Individual Properties managed by such Qualified Manager unless otherwise reasonably agreed by Lender in writing, and (B) otherwise be on terms and conditions approved by Lender (which approval will not be unreasonably withheld, conditioned or delayed); provided that any new Management Agreement which satisfies clause (A) above and is in form and substance substantially the same as any existing Management Agreement by and between a Qualified Manager and the applicable Individual Borrowers or Operating Lessee that exist as of the Closing Date shall be deemed to be approved by Lender; (v) Lender shall have received evidence reasonably satisfactory to it (which may be in the form of an Officer’s Certificate) that such replacement(s) of such Manager(s) are not prohibited by and would not permit the Cash Management applicable Franchisor or the applicable Ground Lessor to terminate any Franchise Agreement or Ground Lease, and will not result in or cause any breach or default under any Franchise Agreement or Ground Lease to the extent such violation, breach or default (bwith or without the passage of time) if would result in an Event of Default, and that any approvals required under any Franchise Agreement or Ground Lease to the replacement of such new manager is an Affiliate of BorrowerManager(s) have been obtained; (vi) Concurrently with such replacement(s), Borrower or Operating Lessee shall deliver a non-consolidation opinion acceptable have paid (or escrowed in accordance with the terms of the Management Agreement(s) being replaced) any termination or transition costs and expenses, termination fees or their equivalent, to which any Manager being replaced is entitled under its Management Agreement; and (vii) Each such Qualified Manager shall enter into an assignment of management agreement and subordination of management fees which either is (A) in form and substance substantially the Rating Agenciessame as the assignment of management agreement and subordination of management fees entered into by any Qualified Manager on the Closing Date or (B) in form and substance approved by Lender (which approval will not be unreasonably withheld, conditioned or delayed).

Prohibition Against Termination or Modification. Borrower shall not (i) surrender, terminate or cancel any Management Agreement, unless (A) Borrower has advised Lender of its intention to terminate the Manager, (B) the replacement manager has delivered to Lender copies of an Assignment of Management Agreement and a cash management agreement in substantially the form of the Cash Management Agreement in each case executed by Borrower and replacement manager and (C) the replacement manager is a Qualified Manager, (ii) modify any Management Agreement in such a way that would have a material adverse effect on the use, operation or value of the Property or the ability of Borrower to pay its obligations in respect of the Loan, (iii) enter into any other agreement with any Person for such Person to act as the manager or operator of the Property, except as provided in this Section 7.2, or (iv) consent to the Transfer by the Manager of its interest under the Management Agreement except as provided in this Section 7.2, in each case without the express consent of Lender, which consent shall not be unreasonably withheld; provided, however, with respect to a new manager (other than a Qualified Manager), such consent may be conditioned upon Borrower delivering a Rating Agency Confirmation as to such new manager and management agreement. If at any time Lender consents to the appointment of a new manager, or a new manager is appointed without Lender’s consent being required, (a) such new manager and Borrower shall, as a condition of Lender’s consent, if required, execute an Assignment of Management Agreement and a cash management agreement in substantially the form of the Cash Management Agreement and (b) if b)if such new manager is an Affiliate of Borrower, Borrower shall deliver a non-consolidation opinion acceptable to the Rating Agencies.