Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management Agreement, Approved Property Manager shall agree that the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, appoint a replacement Approved Property Manager to manage one or more of the Properties pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approved. (b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”. (c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities. (d) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee or the Approved Property Manager under any Approved Management Agreement after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender. (e) Upon an Event of Default followed by acceleration of the Loan, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement), require Borrower or Operating Lessee to cause the termination of one or more Approved Management Agreements and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management Agreement, Approved Property Manager shall agree that the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate to the Indebtedness. Borrower Maryland Guarantor may from time to time, with Lender’s consent and (subject to satisfaction the terms of the Rating Conditionthis Section 5.10(a)), appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s Lender shall not withhold its consent to the appointment of any replacement property manager that (a) is a replacement reputable and experienced third-party management organization, (b) possesses no less than ten years’ experience in managing hotel properties similar in size, quality and value to the Property, (c) has been approved by the Approved Franchisor, (d) manages at least 10 hotels in multiple states, with multiple franchisors and with at least an aggregate of 2,000 rooms and (e) is appointed pursuant to an Approved Management Agreement with substantially comparable economics as the existing Approved Management Agreement, including (1) no greater than a 3.0% base management fee and (2) per annum fees (including any incentive fees) that do not exceed the fees specified in the Approved Management Agreement. Lender shall confirm any proposed Approved Property Manager shall be made in writing and accompanied by Manager’s compliance with the proposed management agreement and foregoing within 10 Business Days of Lender’s receipt of Maryland Guarantor’s written request together with all information reasonably necessary to make such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties)determination. If Lender shall fail to respond within such 10 Business Day period, Maryland Guarantor shall have the right to Borrower’s request send Lender a notice requesting Lender to approve or disapprove a replacement Approved Property Manager respond within ten 5 Business Days of Lender’s receipt of such request in an envelope and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that letter marked “LENDER’S IMMEDIATE ATTENTION REQUIRED — FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN 5 BUSINESS DAYS SHALL BE CONSTITUTE A DEEMED LENDER’S APPROVALCONSENT.” In If Lender shall fail to respond within such 5 Business Day period, Lender shall have been deemed to have confirmed such proposed Approved Property Manager’s compliance with the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedforegoing requirements.
(b) The Properties Property shall be branded at all times as “Affinia”, except for by an Approved Franchisor pursuant to an Approved Franchise Agreement. Lender shall have the rights and remedies granted to Lender under the Franchisor Comfort Letter. Maryland Guarantor may from time to time appoint an Approved Franchisor to brand the Property branded as “pursuant to an Approved Franchise Agreement, and such successor franchisor shall execute for Lender’s benefit a franchisor comfort letter in form and substance reasonably satisfactory to Lender. In no event shall it be deemed unreasonable for Lender to require that the franchisor comfort letter delivered by any successor franchisor be substantially in the form of the Franchisor Comfort Letter. The ▇▇▇▇▇▇▇▇”, which per annum fees of the Approved Franchisor shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”not exceed the fees specified in the Approved Franchise Agreement.
(c) Borrower Maryland Guarantor shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(d) Borrower Maryland Guarantor shall notify Lender in writing of any default of Borrower(i) Maryland Guarantor, Operating Lessee or the Approved Property Manager under any the Approved Management Agreement and (ii) Maryland Guarantor, Operating Lessee or the Approved Franchisor under the Approved Franchise Agreement, in each case, after the expiration of any applicable cure periods, of which Borrower Maryland Guarantor has actual knowledge. After reasonable notice to BorrowerMaryland Guarantor, Lender shall have the right to cure defaults of Borrower Maryland Guarantor or Operating Lessee under any (i) the Approved Management Agreement (in accordance with the Subordination of Management Agreement) and (ii) the Approved Franchise Agreement (in accordance with the Franchisor Comfort Letter). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(e) Upon an Event of Default followed by acceleration of the Loan, Lender may, in its sole discretion (in accordance with Section 3(d) of the applicable Subordination of Management Agreement), require Borrower or Operating Lessee Maryland Guarantor to cause the termination of one or more the Approved Management Agreements Agreement and to engage the engagement of an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
(f) If Lender forecloses on the Property, Lender may, in its sole discretion (and without any obligation to pay any related termination fee, which termination fee, if any, shall be the sole obligation of Maryland Guarantor), terminate or require Maryland Guarantor to cause the termination of the Approved Franchise Agreement as provided in the Franchisor Comfort Letter and the engagement of an Approved Franchisor selected by Lender to serve as replacement Approved Franchisor pursuant to an Approved Franchise Agreement. In the event of (i) a material default by the Approved Franchisor under the Approved Franchise Agreement after the expiration of any applicable cure period or (ii) the filing of a bankruptcy petition or the occurrence of a similar event with respect to the Approved Franchisor, Lender may, in its sole discretion (and without any obligation to pay any related termination fee, which termination fee shall be the sole obligation of Maryland Guarantor ), require Maryland Guarantor to cause the termination of the Approved Franchise Agreement (to the extent provided in the Franchisor Comfort Letter) and the engagement of a new Approved Franchisor.
(g) Maryland Guarantor shall promptly deliver to Approved Property Manager, in accordance with Section 4.02(b) of the Approved Management Agreement, any notice of default or Event of Default delivered to Obligor under this Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the incentive fee payable thereunder are is subject and subordinate to the IndebtednessDebt. Borrower may from time to time, with Lender’s Without the prior written consent and subject to satisfaction of the Rating ConditionLender in its sole and absolute discretion, Borrower shall not appoint a replacement successor to the Approved Property Manager to manage one or more the Property. Any successor manager of the Properties pursuant to an Approved Management Agreement, and such successor manager Property permitted hereunder shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedbenefit.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property ManagerManager permitted hereunder) to maintain at all times while the Loan is outstanding to maintain worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default “Event of Borrower, Operating Lessee Default” (or similar term) under and as defined in the Approved Property Manager under any Approved Management Agreement after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement to cure such Events of Default of Borrower under the Approved Management Agreement). Any reasonable actual out-of-pocket expenses incurred by Lender to cure any such default Event of Default shall constitute a part of the Indebtedness Debt and shall be due from Borrower within ten Business Days after written demand therefor.
(d) Lender shall have the right to require Borrower to replace the Approved Property Manager with a Person which is not an Affiliate of Borrower and is approved by Lender in its sole good faith discretion upon demand by Lenderthe occurrence of any one or more of the following events: (i) at any time following the occurrence of an Event of Default and acceleration of the Loan or the Senior Loan, (ii) if Approved Property Manager shall be in default under the Approved Management Agreement beyond any applicable notice and cure periods or (iii) at any time due to the Approved Property Manager’s fraud or willful misconduct.
(e) Upon an Event of Default followed by acceleration Neither Borrower Party shall consent to or otherwise permit any Modification to the terms of the Loan, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement), require Borrower or Operating Lessee to cause the termination of one or more Approved Management Agreements and Agreement (including, without limitation, any increase in the fee payable to engage an the Approved Property Manager selected by thereunder) without having first obtained the prior written approval of Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreementwith respect thereto.
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Thomas Properties Group Inc)
Management of Collateral. (a) Each Mortgaged Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant As a condition to the Subordination of Property Management AgreementClosing (or reasonably promptly after the Closing Date), except as otherwise expressly set forth herein, each Approved Property Manager shall agree with Lender in writing that the its Approved Management Agreement Agreement, and the all fees (including any incentive fee payable thereunder fees) thereunder, are subject and subordinate to the IndebtednessIndebtedness and that no fees payable (including any incentive fees) thereunder shall accrue as between such Approved Property Manager and Lender as a result of Borrower’s or TRS Lessee’s failure to pay any amounts (without in any way implying any obligation on the part of Lender to pay any fees payable by Borrower or TRS Lessee to any Approved Property Manager), and that such Approved Management Agreement may be terminated under the circumstances set forth herein. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement Approved Property Manager to manage one or more of the successor managers, which successor managers shall be Approved Property Managers, to manage Mortgaged Properties pursuant to an one or more Approved Management AgreementAgreements, and such successor manager managers shall execute for Lender’s benefit a Subordination Subordinations of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request Borrower may, or may permit TRS Lessee to, from time to time modify or replace an Approved Management Agreement, but any material modification or replacement agreement shall be subject to Lender’s prior written consent (which consent shall not, in the absence of a continuing Event of Default, be unreasonably withheld, delayed or conditioned) and Rating Confirmation. No new Approved Management Agreement hereafter entered into shall provide for management fees in excess of 4% of gross revenues without Lender’s prior written consent.
(b) Each Mortgaged Property shall at all times be branded pursuant to an Approved Franchise Agreement between Borrower or TRS Lessee and an Approved Franchisor. Notwithstanding the foregoing, Lender agrees that, if the Borrower requests Lender’s consent to the appointment replacement of any existing franchisor for one or more of the Mortgaged Properties with a Person that is as a franchisor in respect of any of the other Properties and such replacement Approved Property Manager franchisor is within a lower chain scale (as defined by ▇▇▇▇▇ Travel Research) than the franchisor it will succeed, Lender shall be made promptly, and in writing and accompanied any case within 30 days of request by the proposed management agreement Borrower and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of the net present value calculation described below, consent to such request replacement, provided only that the net present value of the Mortgaged Property would be greater after giving effect to the new franchise agreement than the net present value of the Mortgaged Property before giving effect thereto as substantiated by a net present value analysis prepared by Borrower (or, as applicable, TRS Lessee), that includes cash flows projections under which the proposed successor franchisor and all the existing franchisor would franchise the hotel at the Mortgaged Property, including any required informationcapital expenditures (i.e., a comparative analysis as to the economic benefit of the successor franchisor assuming such role). Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such requestmay, or request additional informationmay permit TRS Lessee to, within ten Business Days from time to time modify an Approved Franchise Agreement or replace an Approved Franchisor with a successor Approved Franchisor pursuant to an Approved Franchise Agreement, but any such modification or replacement of an Approved Franchise Agreement shall be subject to Lender’s prior written consent (which consent shall not, in the absence of a continuing Event of Default, be unreasonably withheld, delayed or conditioned) and Lender’s receipt of such second request, such request shall be deemed approved.
(b) The Properties shall be branded at all times as “Affinia”, except for a Franchise Comfort Letter from the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”successor Approved Franchisor.
(c) Borrower shall cause TRS Lessee and each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by any applicable Governmental AuthoritiesAuthority.
(d) Borrower shall notify Lender in writing of any material default of Borrower, Operating TRS Lessee or the an Approved Property Manager under any of the Approved Management Agreement Agreements, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower or TRS Lessee and in accordance with the applicable Subordination of Property Management Agreement, to cure material defaults of Borrower or Operating TRS Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any reasonable out-of-pocket expenses incurred by Lender to cure any such default in accordance with such Subordination of Property Management Agreement shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender. Notwithstanding anything to the contrary, in the case of a default by Borrower or TRS Lessee under any Approved Management Agreement relating to a failure to provide adequate working capital in respect of payroll and related employee expenses or otherwise, Borrower shall, or shall cause TRS Lessee to, cure any such default promptly upon its receipt of notice thereof from the applicable Approved Property Manager and in any event by no later than 5 Business Days prior to the expiration of any applicable cure periods provided under the applicable Approved Management Agreement.
(e) Upon the occurrence and during the continuance of an Event of Default followed by acceleration of the LoanDefault, Lender may, in its sole discretion discretion, (in accordance with the applicable Subordination of Management Agreement), 1) terminate or require Borrower to terminate, or Operating to cause TRS Lessee to cause terminate, one or more of the termination of Approved Management Agreements and engage one or more Approved Management Agreements and to engage an Approved Property Manager Managers selected by Lender to serve as replacement Approved Property Manager Managers pursuant to Approved Management Agreements; and/or (2) to the extent permitted under the Approved Franchise Agreements, terminate or require Borrower to terminate, or cause TRS Lessee to terminate, one or more of the Approved Franchisors and, if requested by Lender, engage one or more Approved Franchisors selected by Lender to serve as replacement Approved Franchisors pursuant to Approved Franchise Agreements.
(f) Upon the filing of a bankruptcy petition or the occurrence of a similar event with respect to an Approved Property Manager or Approved Franchisor, or a material default by an Approved Property Manager or Approved Franchisor that is reasonably likely to have a Material Adverse Effect upon the applicable Mortgaged Property (beyond the expiration of any applicable cure period) under an Approved Management Agreement or Approved Franchise Agreement,
(i) to the extent permitted under the applicable Approved Management Agreement or the applicable Subordination of Property Management Agreement, Lender may, in its sole discretion, require Borrower to terminate, or cause TRS Lessee to terminate, the applicable Approved Management Agreement and cause Borrower to engage, or cause TRS Lessee to engage, one or more replacement Approved Property Managers pursuant to Approved Management Agreements; and
(ii) to the extent permitted under the applicable Approved Franchise Agreement, Lender may, in its sole discretion, require Borrower to terminate, or cause TRS Lessee to terminate, the applicable Approved Franchise Agreement and cause Borrower to engage, or cause TRS Lessee to engage, one or more replacement Approved Franchisors pursuant to Approved Franchise Agreements.
(g) Notwithstanding anything herein to the contrary, in connection with the closing, Lender agrees to enter into reasonably satisfactory subordination and non-disturbance agreements with Hilton brands with respect to any Approved Management Agreements that terminate within 18 months after the Closing Date, pursuant to which Lender will not have the termination rights specified herein; provided that any renewal or replacement thereof shall be subject to the subordination and other requirements specified herein without regard to this clause (g). In addition, notwithstanding anything herein to the contrary, in connection with the closing, Lender agrees to enter into reasonably satisfactory subordination and non-disturbance agreements with Hyatt brands with respect to any Approved Management Agreements, pursuant to which Lender will not have the termination rights specified herein; provided that any renewal or replacement thereof shall be subject to the subordination and other requirements specified herein without regard to this clause (g).
Appears in 1 contract
Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the IndebtednessIndebtedness (provided that there shall be no obligation to repay any fees received and earned prior to the occurrence of an Event of Default). Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties applicable Property pursuant to an Approved Management Agreement, and provided that (i) no Event of Default is continuing, (ii) Lender receives at least 30 days’ prior written notice of same, (iii) such successor manager shall execute and deliver to Lender for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement , and (iv) if such Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number is an affiliate of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may shall deliver to Lender a second request for consent stating in bold new nonconsolidation opinion reasonably acceptable to Lender with respect to such Approved Property Manager and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In new Approved Management Agreement. The per annum fees of the event Lender fails to approve or disapprove such requestApproved Property Manager (including any incentive fees) shall not, or request additional informationat any time, within ten Business Days exceed the Maximum Management Fee, which amount shall not include any amounts payable as a reimbursement of Lender’s receipt of such second request, such request shall be deemed approvedexpenses under the Approved Management Agreement.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any material default of Borrower, Operating Lessee Borrower or the an Approved Property Manager under any of the Approved Management Agreement Agreements, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with such Subordination of Property Management Agreement, to cure defaults of Borrower or Operating Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any actual and documented out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, or during the continuance of a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods), or if the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, or if a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or if the Approved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender Borrower, or in the event of an Event of Default or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, selected by Lender, to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
(e) In the event that the Approved Management Agreement is scheduled to expire at any time during the term of the Loan (after giving effect to any extensions now or hereafter agreed to by Borrower and Approved Property Manager), Borrower shall submit to Lender by no later than 30 days prior to such expiration a replacement Approved Management Agreement or a draft replacement management agreement for approval in accordance with the terms and conditions hereof.
Appears in 1 contract
Sources: Loan Agreement (Parkway, Inc.)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management Agreement, Approved Property Manager shall agree that the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum fees of the appointment Approved Property Manager (including any incentive fees) shall not exceed the fees specified in the Approved Management Agreement. In connection with any approval by Lender of a replacement Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (includingManager, the number including any negotiation of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Subordination of Property Manager Management Agreement, Servicer shall use commercially reasonable efforts to make its determination within ten Business Days thirty (30) days after receipt from Borrower of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type including any additional information that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedServicer requests.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with the Subordination of Management Agreement, to cure defaults of Borrower or Operating Lessee under any the Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed and, simultaneously, a material default by acceleration the Approved Property Manager under the Approved Management Agreement after the expiration of any applicable cure period or upon the Loanfiling of a bankruptcy petition or the occurrence of a similar event with respect to the Approved Property Manager, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause the termination of one or more the Approved Management Agreements Agreement and to engage the engagement of an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement Agreement, and the all fees thereunder (including any incentive fee payable thereunder fees), are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement successor manager, which successor manager shall be an Approved Property Manager Manager, to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s 's benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The fees of the appointment of a replacement Approved Property Manager (including any incentive fees) shall be made not exceed market rates generally paid by owners of similar properties in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the applicable geographic regions market in which such managed properties are the Property is located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approved.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s 's compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon the occurrence and during the continuance of an Event of Default followed by acceleration of the LoanDefault, Lender may, in its sole discretion (in accordance with discretion, require, Borrower to terminate the applicable Subordination of Management Agreement), require Borrower or Operating Lessee to cause the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement. Following a default by the Approved Property Manager under the Approved Management Agreement that is reasonably likely to result in a Material Adverse Effect and after the expiration of any applicable cure period, Lender may, in its reasonable discretion, require Borrower to terminate the Approved Management Agreement and engage an Approved Property Manager selected by Lender that is not one of the entities listed on Schedule J hereto (or, at Borrower's option, selected by Borrower and reasonably approved by Lender) to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Sources: Loan Agreement (Las Vegas Sands Inc)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management Agreement, Approved Property Manager shall agree that the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and and, as a condition to such successor manager appointment, such Approved Property Manager shall execute (x) (1) a management agreement in form and substance reasonably acceptable to Lender and (2) for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent , pursuant to the appointment of a replacement which such Approved Property Manager shall be made in writing agree that its Approved Management Agreement and accompanied by all fees thereunder (including any incentive fees) are subject and subordinate to the proposed management agreement Indebtedness and (y) deliver an updated Nonconsolidation Opinion if such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate is an Affiliate of Borrower. The per annum base management fees of the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required informationshall not, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In at any time, exceed the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedMaximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon promptly following written demand by Lender.
(ed) Upon In the event that (i) an Event of Default followed shall be continuing and the Loan has been accelerated, (ii) any foreclosure, conveyance in lieu of foreclosure or other similar transaction following an Event of Default shall have occurred, (iii) a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods) shall be continuing, (iv) the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, (v) a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or (vi) the Approved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and engage a replacement property manager (which shall be selected by Borrower, within thirty (30) days after Lender requires Borrower to engage an terminate the then Approved Property Manager Manager, and reasonably approved by Lender) (provided, that, if Borrower does not select a replacement property manager within such 30-day period or in the event that the Loan has been accelerated, such replacement manager may be selected by Lender in Lender’s sole and absolute discretion) to serve as a replacement Approved Property Manager pursuant to an Approved Management AgreementAgreement in accordance with the terms of Section 5.10(a).
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the IndebtednessIndebtedness (provided that there shall be no obligation to repay any fees received and earned prior to the occurrence of an Event of Default). Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties applicable Property pursuant to an Approved Management Agreement, and provided that (i) no Event of Default is continuing, (ii) Lender receives at least 30 days’ prior written notice of same, (iii) such successor manager shall execute and deliver to Lender for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement , and (iv) if such Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number is an affiliate of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may shall deliver to Lender a second request for consent stating in bold new nonconsolidation opinion reasonably acceptable to Lender with respect to such Approved Property Manager and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In new Approved Management Agreement. The per annum fees of the event Lender fails to approve or disapprove such requestApproved Property Manager (including any incentive fees) shall not, or request additional informationat any time, within ten Business Days exceed the Maximum Management Fee, which amount shall not include any amounts payable as a reimbursement of Lender’s receipt of such second request, such request shall be deemed approvedexpenses under the Approved Management Agreement.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.. 68
(dc) Borrower shall notify Lender in writing of any material default of Borrower, Operating Lessee Borrower or the an Approved Property Manager under any of the Approved Management Agreement Agreements, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with such Subordination of Property Management Agreement, to cure defaults of Borrower or Operating Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any actual and documented out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, or during the continuance of a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods), or if the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, or if a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or if the Approved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender Borrower, or in the event of an Event of Default or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, selected by Lender, to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
(e) In the event that the Approved Management Agreement is scheduled to expire at any time during the term of the Loan (after giving effect to any extensions now or hereafter agreed to by Borrower and Approved Property Manager), Borrower shall submit to Lender by no later than 30 days prior to such expiration a replacement Approved Management Agreement or a draft replacement management agreement for approval in accordance with the terms and conditions hereof.
Appears in 1 contract
Sources: Loan Agreement (Parkway, Inc.)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum fees of the appointment of a replacement Approved Property Manager (including any incentive fees) shall be made in writing and accompanied by not, at any time, exceed 3% of the proposed management agreement and such information regarding gross revenues of the proposed replacement Approved Property Manager that would allow Lender to evaluate for the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedthen most recently concluded Test Period.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon the occurrence and during the continuance of an Event of Default followed Default, or a material default by acceleration the Approved Property Manager under the Approved Management Agreement after the expiration of any applicable cure period or upon the Loanfiling of a bankruptcy petition or the occurrence of a similar event with respect to the Approved Property Manager, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the respective Subordination of Property Management Agreement, each Approved Property Manager shall agree that the its Approved Management Agreement and all incentive fees payable to the incentive fee payable Approved Property Manager thereunder are subject and subordinate to the Indebtedness. In the event Real Hospitality Group, LLC, shall cease to be the Approved Property Manager for a Property, Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, appoint a replacement Approved Property Manager to manage one or more of the Properties applicable Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination subordination and non-disturbance of Property Management Agreement property management agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a , Borrower and such replacement Approved Property Manager shall be made in writing and accompanied by Manager. The per annum base management fees of the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate under each Approved Management Agreement shall not, at any time, exceed the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedMaximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee or the Approved Property Manager under any Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After Subject to the terms of the applicable Subordination of Management Agreement, Lender shall have the right, after reasonable notice to Borrower, Lender shall have the right to cure defaults of Borrower or Operating Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of a material default by the Approved Property Manager under an Event Approved Management Agreement (after the expiration of Default followed by acceleration of the Loanany applicable notice and/or cure periods), Lender may, in its sole discretion (in accordance with shall have the applicable Subordination of right to require Borrower to exercise any and all available remedies under such Approved Management Agreement), require Borrower or Operating Lessee to cause and if the exercise of such remedies shall result in the termination of one or more such Approved Management Agreements and to Agreement, engage an Approved Property Manager selected by reasonably acceptable to Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement. Notwithstanding anything to the contrary contained herein or in any other Loan Document, Lender’s approval of any replacement Approved Management Agreement shall be subject to such agreement providing for a cash management system that is reasonably acceptable to Lender and, as a condition to Lender’s approval of any replacement Approved Management Agreement, Lender may require this Agreement and the Cash Management Agreement to be amended to the extent required to conform such agreements to any such cash management system.
(e) Subject to any closure of the Hyatt Herald Square necessary to complete the Capital Plan, each Property shall at all times be branded pursuant to an Approved Franchise Agreement between Borrower or Operating Lessee and an Approved Franchisor. Except with respect to the Holiday Inn Franchise Agreement, each Approved Franchisor shall execute and deliver to Lender a franchisor comfort letter reasonably acceptable to Lender. During the continuance of a material default by the Approved Franchisor under an Approved Franchise Agreement (after the expiration of any applicable notice and/or cure periods), Lender shall have the right to require Borrower to exercise any and all available remedies under such Approved Franchise Agreement, and if the exercise of such remedies shall result in the termination of such Approved Franchise Agreement, engage an Approved Franchisor reasonably acceptable to Lender to serve as replacement Approved Franchisor pursuant to an Approved Franchise Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the incentive fee payable thereunder are is subject and subordinate to the IndebtednessDebt. Borrower may from time to time, with Lender’s Without the prior written consent and subject to satisfaction of the Rating ConditionLender in its sole and absolute discretion, Borrower shall not appoint a replacement successor to the Approved Property Manager to manage one or more the Property. Any successor manager of the Properties pursuant to an Approved Management Agreement, and such successor manager Property permitted hereunder shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedbenefit.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property ManagerManager permitted hereunder) to maintain at all times while the Loan is outstanding to maintain worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default “Event of Borrower, Operating Lessee Default” (or similar term) under and as defined in the Approved Property Manager under any Approved Management Agreement after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement to cure such Events of Default of Borrower under the Approved Management Agreement). Any reasonable actual out-of-pocket expenses incurred by Lender to cure any such default Event of Default shall constitute a part of the Indebtedness Debt and shall be due from Borrower within ten Business Days after written demand therefor.
(d) Lender shall have the right to require Borrower to replace the Approved Property Manager with a Person which is not an Affiliate of Borrower and is approved by Lender in its sole good faith discretion upon demand by Lenderthe occurrence of any one or more of the following events: (i) at any time following the occurrence of an Event of Default and acceleration of the Loan, the Senior Loan, the Senior Mezzanine Loan or the Junior A Mezzanine Loan, (ii) if Approved Property Manager shall be in default under the Approved Management Agreement beyond any applicable notice and cure periods or (iii) at any time due to the Approved Property Manager’s fraud or willful misconduct.
(e) Upon an Event of Default followed by acceleration Neither Borrower Party shall consent to or otherwise permit any Modification to the terms of the Loan, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement), require Borrower or Operating Lessee to cause the termination of one or more Approved Management Agreements and Agreement (including, without limitation, any increase in the fee payable to engage an the Approved Property Manager selected by thereunder) without having first obtained the prior written approval of Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreementwith respect thereto.
Appears in 1 contract
Sources: Junior B Mezzanine Loan Agreement (Thomas Properties Group Inc)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum fees of the appointment of a replacement Approved Property Manager (including any incentive fees) shall be made in writing and accompanied by not, at any time, exceed the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedMaximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Property Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, or during the continuance of a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods), or if the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, or if a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or if the Approved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Sources: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties each Property pursuant to an Approved Management Agreement, and provided that (i) no Event of Default is continuing, (ii) Lender receives at least 30 days’ prior written notice of same, (iii) such successor manager shall execute and deliver to Lender for Lender▇▇▇▇▇▇’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement , and (iv) if such Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number is an affiliate of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may shall deliver to Lender a second request for consent stating in bold new nonconsolidation opinion reasonably acceptable to Lender with respect to such Approved Property Manager and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In new Approved Management Agreement. The per annum fees of the event Lender fails to approve or disapprove such requestApproved Property Manager (including any incentive fees) shall not, or request additional informationat any time, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedexceed the Maximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable notice, grace and/or cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Property Management Agreement), to cure such material defaults of Borrower under the Approved Management Agreement. Any out-of-pocket expenses incurred by Lender to cure any such material default shall constitute a part of the Indebtedness and shall be due from Borrower upon within ten (10) Business Days after receipt of written demand by from Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, or during the continuance of a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice, grace and/or cure periods) which would entitle Borrower to terminate the Loanapplicable Approved Management Agreement and which is reasonably likely to have an Individual Material Adverse Effect, or if the Approved Property Manager files or is the subject of a petition in bankruptcy that, in relation to any involuntary bankruptcy filing, has not been dismissed within 90 days after commencement, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender Borrower, subject to Lender’s reasonable approval, or following any foreclosure, conveyance-in-lieu of foreclosure or other similar transaction, selected by Lender, to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement. (e) In the event that the Approved Management Agreement is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 60 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof. If required, Lender shall subordinate the Lien of the applicable Mortgage to the Element Site Specific Covenant pursuant to a customary and reasonable subordination agreement in the form required by the applicable Governmental Authority.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s 's benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum fees of the appointment of a replacement Approved Property Manager (including any incentive fees) shall be made in writing and accompanied by not, at any time, exceed three (3%) of the proposed management agreement and such information regarding gross revenues of the proposed replacement Approved Property Manager that would allow Lender to evaluate for the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedthen most recently concluded Test Period.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s 's compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or a material default by acceleration the Approved Property Manager under the Approved Management Agreement after the expiration of any applicable cure period or upon the Loanfiling of a bankruptcy petition or the occurrence of a similar event with respect to the Approved Property Manager, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager Manager. If Borrower is not or does not remain the Approved Property Manager, the management shall be pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager (other than Borrower acting in a self-management capacity without fee) shall agree that the its Approved Management Agreement Agreement, and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties applicable Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to If the appointment of a replacement Approved Property Manager shall be made is other than Borrower acting in writing and accompanied by a self-management capacity without fee, the proposed management agreement and such information regarding per annum fees of the proposed replacement Approved Property Manager that would allow Lender to evaluate (including any incentive fees) shall not, at any time, exceed 3% of the same (including, gross revenues of the number of hotels and rooms under management, relevant Property for the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedthen most recently concluded Test Period.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.. G▇▇▇▇▇▇ S▇▇▇▇ Commercial Mortgage Capital, L.P. Loan Agreement Life Time Fitness Portfolio
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the an Approved Property Manager under any of the Approved Management Agreement Agreements, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with such Subordination of Management Agreement, to cure defaults of Borrower or Operating Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon the occurrence and during the continuance of an Event of Default followed Default, or a material default by acceleration an Approved Property Manager under an Approved Management Agreement after the expiration of any applicable cure period or upon the filing of a bankruptcy petition or the occurrence of a similar event with respect to an Approved Property Manager, or at any time when Borrower is obligated to make fundings of the LoanMonthly Capital Expenditure Reserve Amount, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower to terminate its own self management or Operating Lessee to cause the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times be either self-managed or managed by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the a Subordination of Property Management Agreement, each Approved Property Manager shall agree that the its Approved Management Agreement Agreement, and the all fees (including any incentive fee payable thereunder fees and base fees) thereunder, are subject and subordinate to the IndebtednessIndebtedness and that no fees payable thereunder shall accrue as between such Approved Property Manager and Lender as a result of Borrower’s failure to pay any amounts (without in any way implying any obligation on the part of Lender to pay any fees payable by Borrower to any Approved Property Manager); provided that in the case of any Approved Property Manager that is not an Affiliate of Borrower, base fees shall be subordinate to the Loan only if and to the extent such base fees exceed 2% of gross revenues per annum (i.e., only the portion of the base fee that exceeds 2% of gross revenues shall be subordinate). Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement Approved Property Manager to manage one or more of the new or successor managers with respect to any one or more Properties, which new or successor managers shall be Approved Property Managers, to manage Properties pursuant to an one or more Approved Management AgreementAgreements, and such successor manager managers shall execute for Lender’s benefit a Subordination Subordinations of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Borrower may from time to time enter into, modify or replace an Approved Management Agreement, but any entering, material modification or replacement of any such Approved Management Agreement shall be subject to Lender’s prior written consent to (which consent shall not, in the appointment absence of a replacement Approved Property Manager shall continuing Event of Default, be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (includingunreasonably withheld, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such propertiesdelayed or conditioned). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approved.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any material default of Borrower, Operating Lessee Borrower or the an Approved Property Manager under any of the Approved Management Agreement Agreements, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with the applicable Subordination of Management Agreement, to cure defaults of Borrower or Operating Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any reasonable out-of-pocket expenses incurred by Lender to cure any such default in accordance with such Subordination of Management Agreement shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender. Notwithstanding anything to the contrary, in the case of a material default by Borrower under any Approved Management Agreement relating to a failure to provide adequate working capital in respect of payroll and related employee expenses or otherwise, Borrower shall cure any such default promptly upon its receipt of notice thereof from the applicable Approved Property Manager and in any event by no later than 5 Business Days prior to the expiration of any applicable cure periods provided under the applicable Approved Management Agreement.
(ed) Upon the occurrence and during the continuance of an Event of Default followed by acceleration of the LoanDefault, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower to terminate one or Operating Lessee to cause more of the termination of Approved Management Agreements, if any, and engage one or more Approved Management Agreements and to engage an Approved Property Manager Managers selected by Lender to serve as replacement Approved Property Managers pursuant to Approved Management Agreements, subject, however, to the acquisition by such Approved Property Manager(s) of all necessary Gaming Licenses to the extent required under applicable law.
(e) Upon the filing of a bankruptcy petition or the occurrence of a similar event with respect to an Approved Property Manager, or upon the occurrence and during the continuance of a material default by an Approved Property Manager under an Approved Management Agreement such that the Approved Management Agreement is terminable by Borrower in accordance with the terms thereof, subject, in each case, to the acquisition of all necessary Gaming Licenses, to the extent required under applicable law,
(i) if the applicable Approved Property Manager is an Affiliate of Borrower, Lender may, in its sole discretion, require Borrower to terminate the applicable Approved Management Agreement and cause Borrower to engage one or more replacement Approved Property Managers pursuant to Approved Management Agreements; and
(ii) if the applicable Approved Property Manager is not an Affiliate of Borrower, provided no Event of Default is then continuing, Borrower shall have the right, without Lender’s consent, to terminate the applicable Approved Property Manager and to engage a replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and all accrued incentive fees payable to the Approved Property Manager thereunder (as opposed to incentive fee payable thereunder fees paid currently) are subject and subordinate to the Indebtedness. In the event Hyatt shall cease to be the Approved Property Manager, Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, appoint a replacement Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination subordination and non-disturbance of Property Management Agreement property management agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum base management fees of the appointment of a replacement Approved Property Manager shall be made in writing and accompanied by not, at any time, exceed the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedMaximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with the Subordination of Management Agreement, to cure defaults of Borrower or Operating Lessee under any the Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of a material default by the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods), or if the Approved Property Manager files or is the subject of a petition in bankruptcy, or if a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an Event assignment for the benefit of Default followed by acceleration of creditors, or if the LoanApproved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with shall have the applicable Subordination of right to require Borrower to exercise any and all available remedies under the Approved Management Agreement), require Borrower or Operating Lessee to cause and if the exercise of such remedies shall result in the termination of one or more the Approved Management Agreements and to Agreement, engage an Approved Property Manager selected by reasonably acceptable to Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement. Notwithstanding anything to the contrary contained herein or in any other Loan Document, Lender’s approval of any replacement Approved Management Agreement shall be subject to such agreement providing for a cash management system that is reasonably acceptable to Lender and, as a condition to Lender’s approval of any replacement Approved Management Agreement, Lender may require this Agreement and the Cash Management Agreement to be amended to the extent required to conform such agreements to any such cash management system; provided, however, if the replacement Approved Property Manager shall be Hilton, Marriott or Starwood, then the cash management provisions contained in this Agreement as of the Closing Date shall apply with respect to the Hilton, Marriott or Starwood replacement Approved Property Management Agreement, as the case may be, and Lender shall not require that the cash management provisions contained in this Agreement and the Cash Management Agreement be amended.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant The Approved Property Management Agreement in place as of the Closing Date shall be subject to the Subordination of Property Starwood SNDA. In the event W Hotel Management Agreement, Inc. shall cease to be the Approved Property Manager shall agree that the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate to the Indebtedness. Manager, Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, appoint a replacement Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination subordination and non-disturbance of Property Management Agreement property management agreement in form and substance reasonably satisfactory to Lender, Borrower and such replacement Approved Property Manager. Any request for Lender’s consent to The per annum base management fees of the appointment of a replacement Approved Property Manager shall be made in writing and accompanied by not, at any time, exceed the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedMaximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After Subject to the terms of the Starwood SNDA, Lender shall have the right, after reasonable notice to Borrower, Lender shall have the right to cure defaults of Borrower or Operating Lessee under any the Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon an Event During the continuance of Default followed a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of the Loanany applicable notice and/or cure periods), Lender may, in its sole discretion (in accordance with shall have the applicable Subordination of right to require Borrower to exercise any and all available remedies under the Approved Management Agreement), require Borrower or Operating Lessee to cause and if the exercise of such remedies shall result in the termination of one or more the Approved Management Agreements and to Agreement, engage an Approved Property Manager selected by reasonably acceptable to Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement. Notwithstanding anything to the contrary contained herein or in any other Loan Document, Lender’s approval of any replacement Approved Management Agreement shall be subject to such agreement providing for a cash management system that is reasonably acceptable to Lender and, as a condition to Lender’s approval of any replacement Approved Management Agreement, Lender may require this Agreement and the Cash Management Agreement to be amended to the extent required to conform such agreements to any such cash management system.
(e) The Property shall at all times be branded pursuant to an Approved Management Agreement between Borrower or Operating Lessee and an Approved Property Manager (or a franchise or license agreement reasonably acceptable to Lender, so long as a comfort letter reasonably acceptable to Lender has been delivered to Lender in connection therewith).
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management Agreement, the Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and provided that (i) no Event of Default is then continuing, (ii) Lender receives at least 30 days’ prior written notice of same, (iii) such successor manager shall execute and deliver to Lender for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement , and (iv) if such Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number is an Affiliate of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may shall deliver to Lender a second request for consent stating new nonconsolidation opinion reasonably acceptable to Lender or a modification to the Nonconsolidation Opinion, in bold either case with respect to such Approved Property Manager and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In new management agreement. The per annum fees of the event Lender fails to approve or disapprove such requestApproved Property Manager (including any incentive fees) shall not, or request additional informationat any time, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedexceed the Maximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon In the event that (i) an Event of Default followed shall be continuing, (ii) any foreclosure, conveyance in lieu of foreclosure or other similar transaction following an Event of Default shall have occurred, (iii) a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods) shall be continuing, (iv) the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, (v) a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or (vi) the Approved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and require Borrower to engage an Approved Property Manager selected reasonably approved by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Sources: Loan Agreement (New York REIT, Inc.)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement Agreement, and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement successor manager, which successor manager shall be an Approved Property Manager Manager, to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s 's benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum fees of the appointment of a replacement Approved Property Manager (including any incentive fees) shall be made in writing and accompanied by not, at any time, exceed 2.5% of the proposed management agreement and such information regarding gross revenues of the proposed replacement Approved Property Manager that would allow Lender to evaluate for the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedthen most recently concluded Test Period.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s 's compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any material default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon an Event of Default followed by acceleration of the LoanIf, Lender may, in its sole discretion (after Borrower shall have entered into a Management Agreement in accordance with the applicable Subordination terms hereof, (a) a monetary Event of Default has occurred and is continuing, (b) with respect to any property manager that is not an affiliate of Borrower, a material default on the part of such property manager (as determined by Lender in its sole and absolute discretion) occurs and is continuing under the terms of any Management Agreement)Agreement or (c) the Manager shall become insolvent, require Borrower or Operating Lessee to cause shall, at the termination request of one or more Approved Lender, terminate the Management Agreements Agreement and to engage replace the Manager with an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreementin accordance with this Section 5.10.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Management of Collateral. (a) Each Property The Properties shall each be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement Agreement, and the all fees thereunder (including any incentive fee payable thereunder fees), are subject and subordinate to the Indebtedness. Presidents Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement successor manager, which successor manager shall be an Approved Property Manager Managers, to manage one or more of the Properties pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment The per annum fees of a replacement each Approved Property Manager (including any incentive fees) shall be made in writing and accompanied by not, at any time, exceed four percent (4%) of the proposed management agreement and such information regarding gross revenues of the proposed replacement Approved relevant Property Manager that would allow Lender to evaluate for the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedthen most recently concluded Test Period.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) RKB Borrower shall cause Presidents Borrower to, and Presidents Borrower shall, cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) RKB Borrower shall cause Presidents Borrower to, and Presidents Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Presidents Borrower or the an Approved Property Manager under any of the Approved Management Agreement Agreements, after the expiration of any applicable cure periods, of which Presidents Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with such Subordination of Management Agreement, to cure defaults of Presidents Borrower or Operating Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon the occurrence and during the continuance of an Event of Default followed Default, or a material default by acceleration an Approved Property Manager under an Approved Management Agreement after the expiration of any applicable cure period or upon the Loanfiling of a bankruptcy petition or the occurrence of a similar event with respect to an Approved Property Manager, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Presidents Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to In the Subordination of Property Management Agreement, event that the Approved Property Manager shall agree that cease to be the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate property manager with respect to the Indebtedness. Property, Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, appoint a replacement Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement. If such successor manager is a national manager, and such successor manager shall execute for Lender’s benefit a Subordination subordination and non-disturbance of Property Management Agreement property management agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment If such successor manager is an affiliate of a replacement Approved Property Manager Borrower, then (i) Borrower shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request new nonconsolidation opinion reasonably acceptable to Lender with respect to such successor manager and new Approved Management Agreement, and (ii) such successor manager shall execute for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt benefit a subordination agreement that shall permit termination of such second request, such request new Approved Management Agreement upon the occurrence of a Manager Termination Event and shall be deemed approvedin form and substance reasonably satisfactory to Lender.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with the Nondisturbance Agreement, to cure defaults of Borrower or Operating Lessee under any the Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon within five Business Days from receipt of written demand by Lender.
(ed) Upon If and to the extent permitted under the Approved Management Agreement and subject to the provisions of the Nondisturbance Agreement, following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, or during the continuance of (i) an Event of Default followed hereunder, and (ii) a material default (after the expiration of any applicable notice and/or cure periods) by acceleration the Approved Property Manager under the Approved Management Agreement (provided that an Event of Default shall also be continuing hereunder), or, subject to applicable law, if the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, or if a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or if the Approved Property Manager is adjudicated insolvent, then, in any such case (any such event, a “Manager Termination Event”), Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an another Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
(e) In the event that the Approved Management Agreement is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 60 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof. Borrower’s failure to submit the same within such time-frame shall, at Lender’s option, constitute an immediate Event of Default.
Appears in 1 contract
Sources: Loan Agreement (Aspen REIT, Inc.)
Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, appoint a replacement Approved Property Manager to manage one or more of the Properties pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approved.69 [AM_ACTIVE 400655008_12]
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Property Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any actual and documented out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, or during the continuance of a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods), or if the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, or if a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or if the Approved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender Borrower, subject to Lender’s reasonable approval, or in the event of an Event of Default or following any foreclosure, conveyance-in-lieu of foreclosure or other similar transaction, selected by Lender, to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
(e) In the event that the Approved Management Agreement is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 30 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof. Borrower’s failure to submit the same within such time-frame shall, at Lender’s option, constitute an immediate Event of Default.
Appears in 1 contract
Sources: Loan Agreement (Hartman Short Term Income Properties XX, Inc.)
Management of Collateral. (a) Each Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and all fees thereunder (including, without limitation, any incentive fees) relating to the incentive fee payable thereunder Properties are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement new Approved Property Manager to manage one or more of the Properties applicable Property pursuant to an a new Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum management fees of the appointment of a replacement Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, without limitation, any incentive fees) shall not, at any time, exceed (i) in the number case of hotels all Properties other than Sunset Valley, 2% of the gross revenues of the relevant Property and rooms under management(ii) in the case of Sunset Valley, 4% of the geographic regions gross revenues of the relevant Property, in which such managed properties are locatedeach of cases (i) and (ii), for the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedthen most recently concluded Test Period.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including including, without limitation, any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the an Approved Property Manager under any of the Approved Management Agreement Agreements, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with such Subordination of Management Agreement, to cure defaults of Borrower or Operating Lessee under any such Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.. | NY\1631294.13 mle ▇▇ ▇▇▇▇ Loan Agreement||
(ed) Upon the occurrence and during the continuance of an Event of Default followed by acceleration Default, or a material default relating to any of the LoanProperties by an Approved Property Manager under an Approved Management Agreement after the expiration of any applicable cure period or upon the filing of a bankruptcy petition or the occurrence of a similar event with respect to an Approved Property Manager, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause remove the termination Properties from the application of one or more the Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement. If Lender does not select a replacement Approved Property Manager, Lender shall have the right to request that the existing Approved Property Manager enter into a new Approved Management Agreement that relates only to the Properties.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust III, Inc.)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management Agreement, the Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject time cause Mortgage Borrower to satisfaction of the Rating Condition, appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and provided that (i) no Event of Default is then continuing, (ii) Lender receives at least 30 days’ prior written notice of same, (iii) such successor manager shall execute and deliver to Lender for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement , and (iv) if such Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number is an Affiliate of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may shall deliver to Lender a second request for consent stating new nonconsolidation opinion reasonably acceptable to Lender or a modification to the Nonconsolidation Opinion, in bold either case with respect to such Approved Property Manager and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In new management agreement. The per annum fees of the event Lender fails to approve or disapprove such requestApproved Property Manager (including any incentive fees) shall not, or request additional informationat any time, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedexceed the Maximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause Mortgage Borrower to cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Mortgage Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Management Agreement), to cure defaults of Mortgage Borrower under the Approved Management Agreement. Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon In the event that (i) an Event of Default followed shall be continuing, (ii) any foreclosure, conveyance in lieu of foreclosure or other similar transaction following an Event of Default shall have occurred, (iii) a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods) shall be continuing, (iv) the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, (v) a trustee or receiver is appointed for the Approved Property Manager’s assets or the Approved Property Manager makes an assignment for the benefit of creditors, or (vi) the Approved Property Manager is adjudicated insolvent, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause Mortgage Borrower to terminate the termination of one or more Approved Management Agreements Agreement and require Borrower to engage an Approved Property Manager selected reasonably approved by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and provided that (i) no Event of Default is continuing, (ii) Lender receives at least 45 days' prior written notice of same, (iii) such successor manager shall execute and deliver to Lender for Lender’s 's benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to the appointment of a replacement , and (iv) if requested by Lender if such Approved Property Manager shall be made in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number is an affiliate of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may shall deliver to Lender a second request for consent stating in bold non-consolidation opinion reasonably acceptable to Lender with respect ..to such Approved Property Manager and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In new Approved Management Agreement. The per annum fees of the event Lender fails to approve or disapprove such requestApproved Property Manager (including any incentive fees) shall not, or request additional informationat any time, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedexceed the Maximum Management Fee.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s 's compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Property Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or following any foreclosure, conveyance in lieu of foreclosure or other similar transaction, or during the continuance of a material default by acceleration the Approved Property Manager under the Approved Management Agreement (after the expiration of any applicable notice and/or cure periods), or if the LoanApproved Property Manager files or is the subject of a petition in bankruptcy, or if a trustee or receiver is appointed for the Approved Property Manager's assets or the Approved Property Manager makes an assignment for the benefit of creditors, or if the Approved Property Manager is adjudicated insolvent, or if the Approved Property Manager ceases to be affiliated with Sponsor, then, in any such case, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, terminate or require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
(e) In the event that the Approved Management Agreement is scheduled to expire at any time during the term of the Loan, Borrower shall submit to Lender by no later than 60 days prior to such expiration a draft replacement management agreement for approval in accordance with the terms and conditions hereof. Borrower's failure to submit the same within such time-frame shall, at Lender's option, constitute an immediate Event of Default.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management Agreement, Approved Property Manager shall agree that the Approved Management Agreement and the incentive fee payable thereunder are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum fees of the appointment of a replacement Approved Property Manager (including any incentive fees) shall be made not exceed the fees specified in writing and accompanied by the proposed management agreement and such information regarding the proposed replacement Approved Property Manager that would allow Lender to evaluate the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedManagement Agreement.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to Borrower and in accordance with the Subordination of Management Agreement, to cure defaults of Borrower or Operating Lessee under any the Approved Management Agreement (in accordance with the Subordination of Management Agreement). Any out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed and, simultaneously, a material default by acceleration the Approved Property Manager under the Approved Management Agreement after the expiration of any applicable cure period or upon the Loanfiling of a bankruptcy petition or the occurrence of a similar event with respect to the Approved Property Manager, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause the termination of one or more the Approved Management Agreements Agreement and to engage the engagement of an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract
Management of Collateral. (a) Each The Property shall be managed at all times by an Approved Property Manager pursuant to an Approved Management Agreement. Pursuant to the Subordination of Property Management AgreementAgreement or Agreements, each Approved Property Manager shall agree that the its Approved Management Agreement and the all fees thereunder (including any incentive fee payable thereunder fees) are subject and subordinate to the Indebtedness. Borrower may from time to time, with Lender’s consent and subject to satisfaction of the Rating Condition, time appoint a replacement an Approved Property Manager to manage one or more of the Properties Property pursuant to an Approved Management Agreement, and such successor manager shall execute for Lender’s 's benefit a Subordination of Property Management Agreement in form and substance reasonably satisfactory to Lender. Any request for Lender’s consent to The per annum fees of the appointment of a replacement Approved Property Manager (including any incentive fees) shall be made in writing and accompanied by not, at any time, exceed three percent (3.0%) of the proposed management agreement and such information regarding gross revenues of the proposed replacement Approved Property Manager that would allow Lender to evaluate for the same (including, the number of hotels and rooms under management, the geographic regions in which such managed properties are located, the flags related to such managed properties and the number of years the proposed manager has been managing such properties). If Lender shall fail to respond to Borrower’s request to approve or disapprove a replacement Approved Property Manager within ten Business Days of Lender’s receipt of such request and all required information, Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such request, or request additional information, within ten Business Days of Lender’s receipt of such second request, such request shall be deemed approvedthen most recently concluded Test Period.
(b) The Properties shall be branded at all times as “Affinia”, except for the Property branded as “The ▇▇▇▇▇▇▇▇”, which shall continue to be branded at all times as “The ▇▇▇▇▇▇▇▇”.
(c) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s 's compensation insurance as required by Governmental Authorities.
(dc) Borrower shall notify Lender in writing of any default of Borrower, Operating Lessee Borrower or the Approved Property Manager under any the Approved Management Agreement Agreement, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. After reasonable notice to Borrower, Lender shall have the right right, after reasonable notice to cure defaults of Borrower or Operating Lessee under any Approved Management Agreement (and in accordance with the Subordination of Property Management Agreement), to cure defaults of Borrower under the Approved Management Agreement. Any reasonable out-of-pocket expenses incurred by Lender to cure any such default shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Lender.
(ed) Upon During the continuance of an Event of Default followed Default, or a material default by acceleration the Approved Property Manager under the Approved Management Agreement after the expiration of any applicable cure period or upon the Loanfiling of a bankruptcy petition or the occurrence of a similar event with respect to the Approved Property Manager, Lender may, in its sole discretion (in accordance with the applicable Subordination of Management Agreement)discretion, require Borrower or Operating Lessee to cause terminate the termination of one or more Approved Management Agreements Agreement and to engage an Approved Property Manager selected by Lender to serve as replacement Approved Property Manager pursuant to an Approved Management Agreement.
Appears in 1 contract