Common use of Replacement of Manager Clause in Contracts

Replacement of Manager. Lender shall have the right to require Borrowers to cause Operating Lessee to replace the Manager of one or more or all of the Properties with a Person chosen by Borrowers and/or Operating Lessee and approved by Lender upon the occurrence of any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual right to do so under the related Management Agreement or the applicable Manager has consented or agreed to the terms of this Section 7.3 in the related Assignment of Management Agreement: (a) at any time following the occurrence of an Event of Default, (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a trailing twelve (12) month basis, as determined by Lender in its sole discretion, (c) if such Manager shall be in default under any material term or covenant set forth in its Management Agreement beyond any applicable notice and cure period, (d) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding and, in the case of an involuntary bankruptcy or insolvency proceeding, such bankruptcy or insolvency proceeding is not dismissed within forty-five (45) days after the filing thereof, or (e) if at any time such Manager has engaged in gross negligence, fraud or willful misconduct; provided that if Lender requests that Borrowers cause Operating Lessee to replace the Manager of one or more or all of the Properties as a result of the occurrence of the Manager Termination Ratio under the preceding clause (b), then Borrowers may engage an independent third party consultant, at their sole cost and expense, to review the performance of the Manager or Managers to be replaced and Borrowers shall only be required to so replace said existing Manager or Managers if, within thirty (30) days after Lender’s request, said independent third party consultant also concludes that said existing Manager or Managers should be replaced.

Replacement of Manager. Lender shall have the right to require Borrowers to cause Operating Lessee to replace the Manager of one or more or all of the Properties with a Person chosen by Borrowers and/or Operating Lessee and approved by Lender upon the occurrence of any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual right to do so under the related Management Agreement or the applicable Manager has consented or agreed to the terms of this Section 7.3 in the related Assignment of Management Agreement: (a) at any time following the occurrence of an Event of Default, (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a Pool 2 trailing twelve (12) month basis, as determined by Lender in its sole discretion, (c) if such Manager shall be in default under any material term or covenant set forth in its Management Agreement beyond any applicable notice and cure period, (d) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding and, in the case of an involuntary bankruptcy or insolvency proceeding, such bankruptcy or insolvency proceeding is not dismissed within forty-five (45) days after the filing thereof, or (e) if at any time such Manager has engaged in gross negligence, fraud or willful misconduct; provided that if Lender requests that Borrowers cause Operating Lessee to replace the Manager of one or more or all of the Properties as a result of the occurrence of the Manager Termination Ratio under the preceding clause (b), then Borrowers may engage an independent third party consultant, at their sole cost and expense, to review the performance of the Manager or Managers to be replaced and Borrowers shall only be required to so replace said existing Manager or Managers if, within thirty (30) days after Lender’s request, said independent third party consultant also concludes that said existing Manager or Managers should be replaced.

Replacement of Manager. In each case to the extent permitted under the applicable Assignment of Management Agreement, Lender shall have the right to require Borrowers Borrower or Leasehold Pledgor to cause Owner and Operating Lessee to replace the any Manager of one or more or all of the Properties with a Person chosen by Borrowers and/or Owner or Operating Lessee and and, unless such replacement is a Qualified Manager, approved by Lender (provided, that such approval of a Manager that is not a Qualified Manager may be conditioned upon Borrower or Leasehold Pledgor delivering a Rating Agency Confirmation as to such new manager and management agreement) upon the occurrence of any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual right to do so under the related Management Agreement or the applicable Manager has consented or agreed to the terms of this Section 7.3 in the related Assignment of Management Agreementevents: (ai) at any time following after the occurrence Loan has been accelerated in accordance with Section 8.2.1, the Maturity Date has occurred, or Lender has commenced a foreclosure action, applied for the appointment of a receiver or exercised other similar remedies with respect to an Event of Default, (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a trailing twelve (12) month basis, as determined by Lender in its sole discretion, (cii) if such Manager shall be in material default under any material term or covenant set forth in its the Management Agreement beyond any applicable that causes a material adverse effect (in Lender’s reasonable determination) on Owner, Operating Lessee or their respective business, net cash flow, operations or financial condition or on the Properties then under management pursuant to such Management Agreement or the use, value, operation or net cash flow thereof or Owner’s or Operating Lessee’s interest therein or Lender’s security therein, and such default is not cured within thirty (30) days after notice and thereof from Lender to Borrower; provided if such default cannot reasonably be cured within such thirty (30) day period Borrower shall have an additional sixty (60) days in which to cure periodsuch default so long as it is diligently pursuing a cure, (diii) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding and, in the case of an involuntary bankruptcy or insolvency proceeding, (provided that if such bankruptcy or insolvency proceeding is involuntary, the same shall not have been dismissed within forty-five ninety (4590) days after the filing thereofof filing), or (eiv) if at any time such Manager has engaged in gross negligence, fraud fraud, willful misconduct or misappropriation of funds (unless such gross negligence, fraud, willful misconduct; provided that if Lender requests that Borrowers cause Operating Lessee to replace misconduct or misappropriation of funds is the act of any employee of such Manager of one other than a senior officer or more or all of the Properties as a result of the occurrence of the other individual controlling such Manager Termination Ratio under the preceding clause (b), then Borrowers may engage an independent third party consultant, at their sole cost and expense, to review the performance of the Manager or Managers to be replaced and Borrowers shall only be required to so replace said existing Manager or Managers if, within thirty (30) days of such Manager’s discovery thereof, such employee has been terminated by that Manager and that Manager has fully compensated Borrower or Leasehold Pledgor, as applicable, for any losses suffered as a result of such gross negligence, fraud, willful misconduct or misappropriation of funds). Subject to the prior written consent of the Mortgage Lender, Lender shall have the right to replace the applicable Manager with any Qualified Manager if (A) neither Borrower nor Leasehold Pledgor is diligently working (or causing Owner or Operating Lessee to diligently work) to replace the Manager and keeping Lender reasonably apprised of its efforts in connection therewith, and Borrower or Leasehold Pledgor fails to commence and continue thereafter (or cause Owner or Operating Lessee to commence and continue thereafter) diligently working to replace the applicable Manager within ten (10) Business Days after written notice from Lender, or (B) Borrower or Leasehold Pledgor fails to actually replace (or cause Owner or Operating Lessee to actually replace) the Manager with a Manager approved by Lender within one hundred twenty (120) days after Lender’s requestinitial notice to Borrower or Leasehold Pledgor to replace the Manager; provided that if Borrower or Leasehold Pledgor is unable to replace the Manager within such one hundred twenty (120) days and Borrower or Leasehold Pledgor continues to diligently work to do so, said independent third party consultant also concludes that said existing Manager or Managers should be replacedthen Borrower and Leasehold Pledgor shall have up to an additional sixty (60) days to replace the Manager.

Replacement of Manager. Lender shall have the right to require Borrowers Borrower to cause Operating Lessee Mortgage Borrower to replace the Manager of one or more or all of the Properties with a Person chosen by Borrowers and/or Operating Lessee and approved by Lender Qualifying Manager upon the occurrence of any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual right to do so under the related Management Agreement or the applicable Manager has consented or agreed to the terms of this Section 7.3 in the related Assignment of Management Agreementevents: (a) at any time following the occurrence of an Event of Default, Default and/or (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a trailing twelve (12) month basis, as determined by Lender in its sole discretion, (c) if such Manager shall be in default under any material term or covenant set forth in its the Management Agreement beyond any applicable notice and cure period, (d) if such Manager shall become insolvent period or a debtor in any bankruptcy or insolvency proceeding and, in the case of an involuntary bankruptcy or insolvency proceeding, such bankruptcy or insolvency proceeding is not dismissed within forty-five (45) days after the filing thereof, or (e) if at any time such the Manager has engaged in gross negligence, fraud or willful misconduct; provided that misconduct and/or (c) if a receiver, liquidator or trustee shall be appointed for any Manager or any Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Manager, or if any proceeding for the dissolution or liquidation of any Manager shall be instituted. The rights of Lender requests that Borrowers (x) to approve any change in the Management Agreement, (y) to cause Operating Lessee to replace the Manager of one or more or all termination of the Properties as existing Manager and (z) to cause the designation of a result replacement manager shall be subject to any rights of the occurrence Mortgage Lender under the Mortgage Loan Documents to take such actions, and the satisfaction of any conditions set forth in the Mortgage Loan Documents relating to the appointment of a replacement manager. Borrower shall provide to Lender any request for action relating to a Manager, including for any change in the Management Agreement, any termination of the Manager Termination Ratio under the preceding clause (b), then Borrowers may engage an independent third party consultant, at their sole cost and expense, to review the performance of the Manager or Managers to be replaced and Borrowers shall only be required to so replace said existing Manager or Managers ifapproval of a replacement manager, within thirty five (305) days after LenderBusiness Days of Borrower’s requestreceipt thereof pursuant to the provisions of the Mortgage Borrower Company Agreement. In the event Lender and Mortgage Lender shall have such rights relating to a Manager under the Loan Documents and Mortgage Loan Documents, said independent third party consultant also concludes that said existing Manager respectively, Lender may exercise such rights, but only to the extent the Mortgage Lender shall not have previously exercised (or Managers should be replaceddeemed to have exercised) such rights.

Replacement of Manager. Lender shall have the right to require Borrowers Borrower to cause Operating Lessee Mortgage Borrower to replace the Manager of one or more or all of the Properties with a Person chosen by Borrowers and/or Operating Lessee and approved by Lender Qualifying Manager upon the occurrence of any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual right to do so under the related Management Agreement or the applicable Manager has consented or agreed to the terms of this Section 7.3 in the related Assignment of Management Agreementevents: (a) at any time following the occurrence of an Event of Default, Default and/or (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a trailing twelve (12) month basis, as determined by Lender in its sole discretion, (c) if such Manager shall be in default under any material term or covenant set forth in its the Management Agreement beyond any applicable notice and cure period, (d) if such Manager shall become insolvent period or a debtor in any bankruptcy or insolvency proceeding and, in the case of an involuntary bankruptcy or insolvency proceeding, such bankruptcy or insolvency proceeding is not dismissed within forty-five (45) days after the filing thereof, or (e) if at any time such the Manager has engaged in gross negligence, fraud or willful misconduct; provided that misconduct and/or (c) if a receiver, liquidator or trustee shall be appointed for any Manager or any Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Manager, or if any proceeding for the dissolution or liquidation of any Manager shall be instituted. The rights of Lender requests that Borrowers (x) to approve any change in the Management Agreement, (y) to cause Operating Lessee to replace the Manager of one or more or all termination of the Properties as existing Manager and (z) to cause the designation of a result replacement manager shall be subject to any rights of the occurrence Mortgage Lender under the Mortgage Loan Documents to take such actions, and the satisfaction of any conditions set forth in the Mortgage Loan Documents relating to the appointment of a replacement manager. Borrower shall provide to Lender any request for action relating to a Manager, including for any change in the Management Agreement, any termination of the Manager Termination Ratio under the preceding clause (b), then Borrowers may engage an independent third party consultant, at their sole cost and expense, to review the performance of the Manager or Managers to be replaced and Borrowers shall only be required to so replace said existing Manager or Managers ifapproval of a replacement manager, within thirty five (305) days after LenderBusiness Days of Borrower’s requestreceipt thereof pursuant to the provisions of the Mortgage Borrower Company Agreement. In the event both Lender and Mortgage Lender shall have such rights relating to a Manager under the Loan Documents and Mortgage Loan Documents, said independent third party consultant also concludes that said existing Manager respectively, Lender may exercise such rights, but only to the extent the Mortgage Lender shall not have previously exercised (or Managers should be replaceddeemed to have exercised) such rights.

Replacement of Manager. Senior Lender shall have and each Junior Lender hereby consents to each Junior Lenders' right, under the right to require Borrowers circumstances set forth in the applicable Junior Loan Documents, to cause Operating Lessee to replace the Manager termination of one or more or all any manager of the Properties with a Person chosen by Borrowers and/or Operating Lessee Premises, and approved by Lender upon the occurrence exercise of such right (and any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual manager replacement right to do so under the related Management Agreement or the applicable Manager has consented or agreed exercised pursuant to the terms of this Section 7.3 13 below) shall not (in and of itself) permit the related Assignment of Management Agreement: (a) at any time following Senior Lender and the occurrence of other Junior Lenders to declare an Event of Default, (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a trailing twelve (12) month basis, Default as determined by Lender in its sole discretion, (c) if such Manager shall be in default under any material term or covenant set forth in its Management Agreement beyond any applicable notice and cure period, (d) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding and, defined in the case of an involuntary bankruptcy Senior Loan Documents or insolvency proceeding, such bankruptcy the applicable Junior Loan Documents or insolvency proceeding is not dismissed within forty-five (45) days after take any Enforcement Action or Equity Collateral Enforcement Action. In the filing thereof, or (e) if at any time such Manager has engaged in gross negligence, fraud or willful misconduct; provided that if event Senior Lender requests that Borrowers cause Operating Lessee to replace the Manager of and one or more or all Junior Lenders shall have the right to so terminate any manager of the Properties as a result Premises, and Senior Lender shall fail to exercise such rights within ten (10) Business days, the most junior Junior Lender may exercise such rights without the consent of the occurrence Senior Lender; provided such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rights, the most junior Junior Lender, having terminated the property manager of the Manager Termination Ratio Premises pursuant to the most junior Junior Loan Documents, shall have the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender's reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the preceding clause (b)Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then Borrowers may engage an independent third party consultantoutstanding, at their sole cost is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and expenseprovided, to review further, that without the performance consent of each of the Manager or Managers to be replaced and Borrowers Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall only be required to so replace said existing Manager or Managers if, within thirty (30) days after Lender’s request, said independent third party consultant also concludes not engage a replacement manager that said existing Manager or Managers should be replacedis an Affiliate of the Senior Borrower.

Replacement of Manager. Senior Lender shall have and each Junior Lender hereby consents to each Junior Lenders’ right, under the right to require Borrowers circumstances set forth in the applicable Junior Loan Documents, to cause Operating Lessee to replace the Manager termination of one or more or all any manager of the Properties with a Person chosen by Borrowers and/or Operating Lessee Premises, and approved by Lender upon the occurrence exercise of such right (and any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual manager replacement right to do so under the related Management Agreement or the applicable Manager has consented or agreed exercised pursuant to the terms of this Section 7.3 13 below) shall not (in and of itself) permit the related Assignment of Management Agreement: (a) at any time following Senior Lender and the occurrence of other Junior Lenders to declare an Event of Default, (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a trailing twelve (12) month basis, Default as determined by Lender in its sole discretion, (c) if such Manager shall be in default under any material term or covenant set forth in its Management Agreement beyond any applicable notice and cure period, (d) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding and, defined in the case of an involuntary bankruptcy Senior Loan Documents or insolvency proceeding, such bankruptcy the applicable Junior Loan Documents or insolvency proceeding is not dismissed within forty-five (45) days after take any Enforcement Action or Equity Collateral Enforcement Action. In the filing thereof, or (e) if at any time such Manager has engaged in gross negligence, fraud or willful misconduct; provided that if event Senior Lender requests that Borrowers cause Operating Lessee to replace the Manager of and one or more or all Junior Lenders shall have the right to so terminate any manager of the Properties as a result Premises, and Senior Lender shall fail to exercise such rights within ten (10) Business days, the most junior Junior Lender may exercise such rights without the consent of the occurrence Senior Lender; provided such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rights, the most junior Junior Lender, having terminated the property manager of the Manager Termination Ratio Premises pursuant to the most junior Junior Loan Documents, shall have the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the preceding clause (b)Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then Borrowers may engage an independent third party consultantoutstanding, at their sole cost is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and expenseprovided, to review further, that without the performance consent of each of the Manager or Managers to be replaced and Borrowers Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall only be required to so replace said existing Manager or Managers if, within thirty (30) days after Lender’s request, said independent third party consultant also concludes not engage a replacement manager that said existing Manager or Managers should be replacedis an Affiliate of the Senior Borrower.