Management of the Property. Grantor further covenants and agrees with Beneficiary as follows: (a) Grantor shall cause the hotel located on the Property to be operated pursuant to the Franchise Agreement and the Management Agreement. (b) Grantor shall: (i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Beneficiary in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith; (iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement; (iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement; (v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement; (vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default; (vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary; (viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and (ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property. (c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”. (d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor. (e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above. (f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool. (g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 2 contracts
Sources: Deed of Trust, Leasehold Deed of Trust, Assignment of Leases and Profits, Security Agreement and Fixture Filing (Innkeepers Usa Trust/Fl), Deed of Trust, Leasehold Deed of Trust, Assignment of Leases and Profits, Security Agreement and Fixture Filing (Innkeepers Usa Trust/Fl)
Management of the Property. Grantor further covenants and agrees with Beneficiary Upon obtaining possession of the Property or upon the appointment of a receiver as follows:
described in Section 7.5 (Taking Possession or Control), Beneficiary, the Trustees or the receiver, as the case may be, may, at their sole option, (a) Grantor shall cause make all necessary or proper repairs and Additions to or upon the hotel located Property, (b) operate, maintain, control, make secure and preserve the Property, (c) receive all Rents, and (d) complete the construction of any unfinished Improvements on the Property and, in connection therewith, continue any and all outstanding contracts for the erection and completion of such Improvements and make and enter into any further contracts which may be necessary, either in their or its own name (the cost of completing the Improvements shall be Expenses secured by this Deed of Trust and accrue interest as set forth in Section 4.19 (Reimbursement; Interest)). In so doing, Beneficiary, the Trustees or such receiver shall have the right to be operated pursuant manage the Property and to carry on the Franchise Agreement business of Grantor and the Management Agreement.
(b) Grantor shall:
(i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe may exercise all of the covenants rights and agreements required powers of Grantor, including, but without limiting the generality of the foregoing, the right to be performed and observed by it under lease the Franchise Agreement and Property, to cancel, modify, renew or extend any Lease or sub-lease of the Management Agreement and do all things necessary to preserve Property and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of carry on any default under contracts entered into by Grantor with respect to the Franchise Agreement Property. Beneficiary, the Trustees or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary such receiver shall be under no obligationliability for, or by reason of, any such taking of possession, entry, holding, removal, maintaining, operation or management, except for willful misconduct. Any Rents received shall be applied (a) first, to pay any sums all Expenses, and to perform any act or take any action as may be appropriate to cause all (b) the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual optionbalance, if any, to extend or renew the term payment of the Franchise Agreement or Management Agreement upon other Obligations. Grantor shall pay on demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the LeasesBeneficiary, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement receiver or the Management Agreement; Trustees (iias the case may be) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under deficiency between (a) the Franchise Agreement Rents received by Beneficiary, the receiver or the Management AgreementTrustees, and (b) all Expenses incurred together with interest thereon at the Reimbursement Rate as provided in Section 4.19 (Reimbursement; (iv) otherwise modify, change, supplement, alter or amend, Interest). The exercise of the remedies provided in this Section shall not cure or waive or release any Event of its rights Default, and the enforcement of such remedies, once commenced, shall continue for so long as Beneficiary shall elect, notwithstanding the fact that the exercise of such remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor shall notmay have, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in cured the possession original Event of Franchisor relating to Grantor not included in the reports referred to aboveDefault.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 2 contracts
Sources: Deed of Trust, Assignment, Security Agreement and Fixture Filing (Sunrise Senior Living Inc), Deed of Trust, Assignment, Security Agreement and Fixture Filing (Sunrise Senior Living Inc)
Management of the Property. Grantor Borrower further covenants and agrees with Beneficiary Lender as follows:
(a) Grantor Borrower shall cause the hotel located on the Property to be operated pursuant to the Franchise Agreement and the Management Agreement.
(b) Grantor Borrower shall:
(i) pay all sums required to be paid by Grantor Borrower under the Franchise Agreement and the Management Agreement and promptly perform and/or observe all of the material covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunderAgreement;
(ii) promptly notify Beneficiary Lender in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary Lender with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the material covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor Borrower with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by BeneficiaryLender;
(viiivi) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor Borrower hereby expressly authorizes and appoints Beneficiary Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of GrantorBorrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; provided, however, that so long as no Event of Default exists hereunder or under any of the Loan Documents, Lender shall not be entitled to exercise the foregoing appointment; and
(ixvii) promptly notify Beneficiary Lender in writing and provide Beneficiary Lender with copies of any material notices delivered to GrantorBorrower or of which Borrower becomes aware, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor Borrower shall not, without BeneficiaryLender’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”Wyndham or as a full-service Marriott hotel, Hilton hotel or other similar, recognized and established, high quality, full-service hotel.
(d) Grantor Borrower shall not, without BeneficiaryLender’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor Borrower if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor Borrower as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of GrantorBorrower.
(e) Grantor Borrower irrevocably authorizes and directs Franchisor Manager to deliver to BeneficiaryLender: (i) all operating information concerning the Property submitted by Grantor Borrower to FranchisorManager; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance DirectorsManager; and (iii) such other information in the possession of Manager that Beneficiary Lender or BeneficiaryLender’s agents may reasonably request, from time to timetime regarding management or operation of the Property, including any information in the possession of Franchisor Manager relating to Grantor Borrower not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 1 contract
Management of the Property. Grantor Mortgagor further covenants and agrees with Beneficiary Mortgagee as follows:
(a) Grantor Mortgagor shall cause the hotel located on the Property to be operated pursuant to the Franchise License Agreement and the Management Agreement.
(b) Grantor Mortgagor shall:
(i) pay all sums required to be paid by Grantor Mortgagor under the Franchise License Agreement and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise License Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary Mortgagee in writing of any default under the Franchise License Agreement or the Management Agreement of which it is aware and provide Beneficiary Mortgagee with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary Mortgagee a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise License Agreement or the Management AgreementAgreement other than day-to-day general correspondence;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement Licensor and the manager under the Management AgreementManager;
(v) assign, and does hereby assign and transfer, to Beneficiary Mortgagee any right it may have to modify modify, amend or supplement the Franchise License Agreement or the Management Agreement, such that any attempted modification, amendment or supplement of the License Agreement or the Management Agreement without the prior written consent of Mortgagee shall be null and void and have no legal force or effect;
(vi) grant Beneficiary Mortgagee the right, but Beneficiary Mortgagee shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise License Agreement or and the Management Agreement on the part of Grantor Mortgagor to be performed or observed to be promptly performed or observed on behalf of GrantorMortgagor, to the end that the rights of Grantor Mortgagor in, to and under the Franchise License Agreement or and the Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor Licensor and Manager such certificates of estoppel with respect to compliance by Grantor Mortgagor with the terms of the Franchise License Agreement and the Management Agreement Agreement, respectively, as may be reasonably requested by BeneficiaryMortgagee;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise License Agreement or and the Management Agreement upon demand by Beneficiary Mortgagee made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor Mortgagor hereby expressly authorizes and appoints Beneficiary Mortgagee its attorney-in-fact to exercise any such option in the name of and upon behalf of GrantorMortgagor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; PROVIDED, HOWEVER, that so long as Mortgagor is not in default hereunder or under any of the Loan Documents, Mortgagee shall not be entitled to exercise the foregoing appointment; and
(ix) promptly notify Beneficiary Mortgagee in writing and provide Beneficiary Mortgagee with copies of any notices delivered to GrantorMortgagor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor Mortgagor shall not, without Beneficiary’s Mortgagee's prior written consent: (i) surrender, terminate or cancel the Franchise License Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise License Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise License Agreement (except as otherwise expressly provided therein) or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise License Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”Hampton Inn.
(d) Grantor Mortgagor shall not, without Beneficiary’s Mortgagee's prior written consent, enter into transactions with any affiliate Affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor Mortgagor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor Mortgagor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate Affiliate of GrantorMortgagor. Notwithstanding the foregoing, Mortgagee acknowledges that Manager is an Affiliate of Mortgagor, and hereby consents to the Management Agreement.
(e) Grantor Mortgagor irrevocably authorizes and directs Franchisor Licensor and Manager to deliver to BeneficiaryMortgagee: (i) all operating information concerning the Property submitted by Grantor Mortgagor to FranchisorLicensor or Manager; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance DirectorsLicensor or Manager; and (iii) such other information that Beneficiary Mortgagee or Beneficiary’s Mortgagee's agents may reasonably request, from time to time, including any information in the possession of Franchisor Licensor or Manager relating to Grantor Mortgagor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 1 contract
Management of the Property. Grantor further covenants and agrees with Beneficiary as follows:
(a) Grantor shall cause the hotel located on the Property to be operated pursuant to the Franchise Agreement and the Management Agreement.
(b) Grantor shall:
(i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by MarriottHilton”.
(d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton one of the following: (A) Marriott (with respect to the Homewood Suites Marriott hotel brand), (B) or Hyatt (with respect to the Summerfield Suites Hyatt hotel brand) or (C) Starwood Hotels and Resorts (with respect to the Westin hotel brand or the Sheraton hotel brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 1 contract
Management of the Property. Grantor further covenants ▇▇▇▇▇▇ agrees that during the period between the Effective Date and agrees with Beneficiary as followsthe Closing Date or earlier termination of this Contract:
(a) Grantor shall Seller will manage and lease the Property or will cause the hotel located on the Property to be operated pursuant managed and leased under policies substantially similar to those existing immediately prior to the Franchise Agreement and Effective Date, provided that neither Seller nor any of the Management Agreement.New Companies shall have any obligation to make any capital improvements, repairs or replacements to the Property or any portion thereof;
(b) Grantor shall:
Seller will maintain (i) pay all sums required or cause to be paid by Grantor under the Franchise Agreement maintained) property and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction liability insurance coverage in the ordinary course of Seller's business with respect to the Property from the Effective Date through the Closing Date or earlier termination of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.this Contract;
(ec) Grantor irrevocably authorizes and directs Franchisor Seller will not grant any lien or cause any instrument to deliver to Beneficiary: (i) all operating information concerning be recorded that would further encumber the Property submitted by Grantor in any manner, other than memoranda of lease and/or subordination, non-disturbance and attornment agreements with respect to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, Leases entered into in accordance with the terms hereof or liens or encumbrances to be discharged as of the Franchise Agreement and enter a new franchise agreement Closing Date, or other ordinary course encumbrances (even if not discharged at the “Substitute Franchise Agreement”Closing Date) with a substitute replacement franchisor such as standard utility easements or other instruments;
(d) Seller will endeavor to deliver to Purchaser copies of any material written notices sent by Seller after the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) Effective Date to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor any Tenant under the Substitute Franchise Agreement do Leases or any contractors or vendors under any Service Agreements alleging any material monetary default by such party under such Leases or such Service Agreements, as applicable; provided, however, that Seller shall not exceed be in default or breach hereunder for the fees payable failure to deliver any such notices;
(e) Seller will endeavor to deliver to Purchaser copies of any material written notices received by Seller after the Franchisor Effective Date from any Tenant under the existing Franchise AgreementLeases alleging any material monetary default by Seller under such Leases; provided, however, that Seller shall not be in default or breach hereunder for the failure to deliver any such notices;
(iiif) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable Seller will endeavor to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient deliver to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade Purchaser copies of any rating applicable material written notices received by Seller after the Effective Date, and of which Seller has actual knowledge, from any Governmental Authority alleging a material violation of a material Applicable Law; provided, however, that Seller shall not be in default or breach hereunder for the failure to the mortgage loan pool.deliver any such notices; and
(g) Notwithstanding anything contained Seller shall not solicit any letters of intent, offers or similar documentation in this Deed of Trust regards to the contrarysale of the Property and/or Membership Interests to any third parties.
(h) Seller shall not make any capital improvements or other alterations to the Property that are, Grantor may surrender, terminate individually or cancel in the Management Agreementaggregate, in accordance with excess of Two Hundred Fifty Thousand Dollars ($250,000.00), or enter into any agreements or contracts to effectuate such capital improvements or alterations that are, individually or in the aggregate, in excess of Two Hundred Fifty Thousand Dollars ($250,000.00), without Purchaser's prior written approval, which approval may be withheld by Purchaser in its sole and absolute discretion, other than (i) de minimis, immaterial alterations, (ii) any work reasonably required under emergency circumstances or in the event of a casualty, or (iii) any capital improvements that Tenants are permitted to make under the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, Californiatheir respective Leases.
Appears in 1 contract
Sources: Contract of Sale and Purchase (Plymouth Industrial REIT, Inc.)
Management of the Property. Grantor further covenants Seller agrees that during the period between the Effective Date and agrees with Beneficiary as followsthe Closing Date:
(a) Grantor shall Seller will manage the Property or will cause the hotel located on the Property to be operated pursuant managed under policies substantially similar to those existing prior to the Franchise Agreement and Effective Date; provided, however, that Seller shall have no obligation to make any capital improvements or replacements to the Management Agreement.Property or any portion thereof;
(b) Grantor shall:
(i) pay all sums required Prior to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe all expiration of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
Inspection Period, Seller shall not enter into any new Lease or any amendment or modification (iiincluding termination) promptly notify Beneficiary in writing of any default under the Franchise Agreement existing Lease (or the Management Agreement consent to any new Sublease or any amendment or modification to any Sublease), other than an amendment to evidence Tenant's exercise of which it is aware and provide Beneficiary with copies of any notices delivered a right to renewal, extension or expansion in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor accordance with the terms set forth in the Lease, without Purchaser's prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. After the expiration of the Franchise Agreement and Inspection Period, Seller shall not enter into any new Lease or any amendment or modification (including termination) of any existing Lease (or consent to any new Sublease or any amendment or modification to any Sublease), other than an amendment to evidence Tenant's exercise of a right to renewal, extension or expansion in accordance with the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option terms set forth in the name Lease, without the prior written consent of and upon behalf of GrantorPurchaser, which power of attorney consent shall be irrevocable granted or withheld in Purchaser's sole and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.absolute discretion;
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel Seller will maintain property and liability insurance coverage in the Franchise Agreement or the Management Agreement; (ii) reduce or consent ordinary course of Seller's business with respect to the reduction Property from the date hereof through the Closing Date or earlier termination of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.this Contract;
(d) Grantor Seller will not grant any lien or cause any instrument to be recorded that would further encumber the Property in any manner, other than subordination, non-disturbance and attornment agreements with respect to Leases entered into in accordance with the terms hereof or liens or encumbrances to be discharged as of the Closing Date;
(e) Seller shall notprovide prompt notice of any material actions, without Beneficiary’s prior written consentsuits, or proceedings (including any eminent domain or condemnation proceeding) pending or to Seller's actual knowledge, threatened in writing in any court or before or by any Governmental Authority against or affecting the Property which arise after the date hereof and of which Seller has actual knowledge of, except as disclosed to Purchaser in the Title Report or Exhibit D hereto;
(f) During the pendency of this Contract, Seller will not enter into transactions with any affiliate including, without limitation, any arrangement providing for service or maintenance contract that will be an obligation affecting the management of Property (excluding Leases and Subleases as provided above) subsequent to the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventoryClosing, except any such transaction contracts entered into in the ordinary course of business of Grantor if that are terminable without cause and without fee, charge, or penalty on 30-days' notice, without the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections prior consent of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consentPurchaser, which shall not be unreasonably withheld, conditioned withheld or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.;
(g) Notwithstanding anything contained in this Deed Seller shall not transfer or remove any material Personalty owned by Seller from the Improvements except for the purpose of Trust repair or replacement thereof. Any items of Personal Property replaced after the date hereof will be promptly installed prior to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms Closing and will be of similar quality of the Management Agreement item of Personalty being replaced;
(h) To the extent sent or received by or on behalf of Seller after the date hereof, Seller shall from the date hereof until Closing, promptly deliver to Purchaser copies of written default notices under Leases, and enter all written notices of litigation or material actions initiated by a new management agreement (Governmental Authority which would affect the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (Property after the “Substitute Manager”), so long as, Closing Date.
(i) Grantor provides Beneficiary with notice Seller shall endeavor to deliver to Purchaser copies of the execution any bills for real and personal property taxes and assessments and copies of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of any notices pertaining to real estate taxes or valuations that are received by Seller after the date hereof in connection with the Hilton hotel loan in Ontario, Californiahereof.
Appears in 1 contract
Sources: Contract of Sale and Purchase (Hines Global REIT, Inc.)
Management of the Property. Grantor further covenants and agrees with Beneficiary Without intending to limit the scope of Manager's duties by specific designation, Manager, in its capacity as follows:
(a) Grantor shall cause managing agent hereunder, shall, during the hotel located on term of its engagement as such managing agent, perform the Property to be operated pursuant to the Franchise Agreement and the Management Agreement.
(b) Grantor shallfollowing duties:
(i) pay Collect, receive and receipt for the account of each Owner all sums required Rental Income and other amounts becoming due and payable to be paid by Grantor under Owner from Tenants in the Franchise Agreement and the Management Agreement and promptly perform and/or observe all Property or other parties. Manager agrees to provide regular checks of the covenants Property to ensure that the Property is secure, protected from vandalism and agreements required to be performed similar activities, and observed by it under the Franchise Agreement generally in good appearance and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;repair.
(ii) promptly Manager shall be reimbursed for all operating expenses. Manager shall use reasonable efforts to minimize operating expenses. Manager shall obtain the prior consent of Owner before incurring any single expenditure in excess of Two Hundred and No/100 Dollars ($200.00), excluding utility bills, unlawful detainer fees and costs, and other normal and recurring expenses, except in an emergency in which case Manager may incur such expenses as are necessary to protect life and property. Manager shall notify Beneficiary in writing such Owner of any default under the Franchise Agreement such emergency expenses as soon as practicable after they are incurred but in no event later than thirty (30) days thereafter. Manager will retain a minimum of $200 per door/unit, to be held in trust, to cover maintenance costs if or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;as needed.
(iii) promptly deliver to Beneficiary a copy Institute any and all legal actions or proceedings (in the name of each financial statementOwner, business plan, capital expenditures plan, notice, report and estimate received by it under if necessary) required for the Franchise Agreement collection of Rent or other Rental Income or amounts owing from Tenants of the Property or the Management Agreement;ousting or dispossessing of Tenants or other persons therefrom, with a lawyer or law firm of Manager’s choice.
(iv) promptly enforce the performance Maintain proper books and observance of journals and orderly files containing Rent records, Leases, correspondence, receipted invoices or bills, and all of the covenants other documents and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, papers pertaining to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate Do or cause to be done all such acts or things in or about the Property under as shall be reasonably necessary or desirable to comply with any and all orders affecting the name of Property placed thereon by any hotel chain federal, state or system other than “Residence Inn by Marriott”municipal authority having jurisdiction over the Property and to comply with any applicable CC&Rs.
(dvi) Grantor shall notHire, without Beneficiary’s prior written consenttrain, enter into transactions with any affiliate includingpromote, without limitation, any arrangement providing for discharge and supervise the management staff of Manager that directly oversees operations of the hotel on the Property, the rendering or receipt . Manager shall have in its employ at all times a sufficient number of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous employees to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes enable it to professionally manage and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning lease the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of this Agreement. All matters pertaining to the Franchise Agreement employment and enter supervision of such employees shall be the sole responsibility of Manager, which in all respects shall be the employer of such employees, and Owner shall have no liability with respect to such matters.
(vii) Deposit in a new franchise agreement banking institution or institutions in the name of Owner (the “Substitute Franchise Agreement”upon receipt of a deposit slip) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved all monies received by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (Manager with respect to the Homewood Suites brandProperty.
(viii) Enter into contracts for services with independent contractors, suppliers and other entities necessary for the operation, repair, maintenance, servicing and promotion of the Property.
(ix) Generally perform all other acts reasonably necessary for the management of the Property.
(x) Manager will research and obtain bi-annual interior preventative maintenance checks at a cost of $65/SF, $95/duplex or Hyatt ($145 tri/4-plex each to Owner. Owner agrees that Manager may deduct this cost from any monies received by Manager with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable Property. The preventative maintenance shall include, but not be limited to, checks for plumbing, caulking, doorstops, dryer vents, smoke detectors, furnace filters, etc. Owner acknowledges that this is not a home inspection and agrees to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter hold Management and vendor harmless and keep them exonerated from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (all loss, damage, liability or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade expense of any rating applicable type or kind regarding the Property. Owner requests to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed opt-out of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.biannual preventative maintenance by initialing here
Appears in 1 contract
Sources: Leasing and Management Agreement
Management of the Property. Grantor further covenants Sellers agree that during the period between the Effective Date and agrees with Beneficiary as followsthe Closing Date:
(a) Grantor Sellers shall cause the hotel located on the Property to be operated pursuant operated, managed and maintained in the manner which is substantially similar to the Franchise Agreement manner it has been operated and maintained during the Management Agreement.twelve (12) month period prior to the Effective Date, so that the Property shall, except for normal wear and tear, be in substantially the same condition on the Closing Date as on the Effective Date;
(b) Grantor shall:
(i) pay all sums required Sellers will cause the Company to be paid by Grantor under the Franchise Agreement maintain property and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction liability insurance coverage in the ordinary course of the Company’s business with respect to the Property from the date hereof through the Closing Date or earlier termination of Grantor if this Contract;
(c) promptly notify Purchaser within five (5) Business Days of receipt by Seller, of (x) any notice of any violations of zoning, building, fire, health environmental or other Applicable Laws relating or referring to the monetary Company, the Hotel or business consideration arising therefrom would be substantially as advantageous any improvements thereon, (y) of any written claim or notice of dispute relating to Grantor as or affecting the monetary Company or business consideration which would obtain in a comparable transaction with a person not an affiliate the Hotel, and (z) any written notice of Grantor.default received by the Company under any Lease or other third party contract following the Effective Date;
(d) cause the Company to renew all Permits;
(e) Grantor irrevocably authorizes and directs Franchisor Sellers will not permit the Company to deliver grant any lien or cause any instrument to Beneficiary: (i) all operating information concerning be recorded that would further encumber the Property submitted by Grantor in any manner, other than memoranda of lease and/or subordination, non-disturbance and attornment agreements with respect to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, Leases entered into in accordance with the terms hereof or liens or encumbrances to be discharged as of the Franchise Agreement and enter a new franchise agreement Closing Date;
(f) Following the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation end of the Franchise Inspection Period until the Closing Date or earlier termination of this Agreement, without the following conditions are satisfied: prior written consent of Purchaser, Sellers shall not (ix) enter into any third party contracts, equipment leases or other material agreements affecting the Substitute Franchisor Company or the Property, or (y) amend, modify, terminate or accept the surrender of any existing tenancies pursuant to any Lease; provided, however, that during the Inspection Period, Sellers shall promptly notify Purchaser of any such contract, agreement or tenancy that is either Hilton entered into or modified as described in (with respect to the Homewood Suites brandx) or Hyatt (with respect y), and deliver to the Summerfield Suites brand); (ii) the aggregate amount Purchaser copies of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities documents executed in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pooltherewith.
(g) Notwithstanding anything contained in this Deed Sellers shall deliver a notice of Trust termination with respect to the contraryContracts with respect to the Company and the Property except the Assumed Contracts. All termination fees and any other costs and expenses relating to such termination shall be the responsibility solely of Sellers, Grantor may surrender, terminate and Purchaser shall not have any responsibility or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.liability therefor; and
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Procaccianti Hotel Reit, Inc.)
Management of the Property. Grantor further covenants and agrees with Beneficiary as follows, all to the extent Grantor has the ability, under the Operating Lease, other contract or otherwise, to control, direct or affect any of the following:
(a) Grantor shall cause the hotel located on the Property to be operated pursuant to the Franchise Management Agreement and the Management Franchise Agreement.
(b) Grantor shall:
(i) pay cause all sums required to be paid by Grantor Tenant under the Franchise Agreement and the Management Agreement and promptly perform and/or observe the Franchise Agreement to be paid and T▇▇▇▇▇'s performance and observance of all of the material covenants and agreements required to be performed and observed by it under the Franchise Management Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunderFranchise Agreement;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Management Agreement or the Management Franchise Agreement of which it is aware and provide Beneficiary with copies of any notices delivered by Grantor in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Management Agreement or the Management Franchise Agreement;
(iv) cause Tenant to promptly enforce the performance and observance of all of the material covenants and agreements required to be performed and/or observed by Manager under the franchisor Management Agreement and Franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Management Agreement or the Management Franchise Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Manager or Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance Tenant with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management or Franchise Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consentrespectively, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.may be requested by Beneficiary;
Appears in 1 contract
Sources: Deed of Trust (Equity Inns Inc)
Management of the Property. Grantor further covenants and agrees with Beneficiary as follows:
(a) Grantor shall cause the hotel located on the Property to be operated pursuant to the Franchise Agreement and the Management Agreement.
(b) Grantor shall:
(i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe observe, in all material respects, all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement, which Beneficiary may only exercise upon the occurrence and during the continuance of an Event of Default;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement (which may be granted or withheld in Beneficiary’s sole discretion) or the Management AgreementAgreement (which may be granted or withheld in Beneficiary’s reasonable discretion); (ii) reduce or consent to the reduction of the term of the Franchise Agreement (which may be granted or withheld in Beneficiary’s sole discretion) or the Management AgreementAgreement (which may be granted or withheld in Beneficiary’s reasonable discretion); (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement (which may be granted or withheld in Beneficiary’s sole discretion) or the Management AgreementAgreement (which may be granted or withheld in Beneficiary’s reasonable discretion); (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement (which may be granted or withheld in Beneficiary’s sole discretion) or the Management Agreement (which may be granted or withheld in Beneficiary’s reasonable discretion) in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by MarriottHilton Suites”, except as expressly provided in the remainder of this Section (which consent may be granted or withheld in Beneficiary’s sole discretion).
(d) Grantor shall not, without Beneficiary’s prior written consent, which may be granted or withheld in Beneficiary’s reasonable discretion, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 1 contract
Management of the Property. Grantor further covenants A. Prior to the Closing Date, Seller shall, at Seller’s sole cost and agrees with Beneficiary as followsexpense:
(a) Grantor shall cause the hotel located on the Property to be operated pursuant to the Franchise Agreement and the Management Agreement.
(b) Grantor shall:
(i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly 1. Promptly deliver to Beneficiary Buyer a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate any notice issued or received by it under the Franchise Agreement or the Management Agreement;
Involved Seller Representatives (iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any a notice of violation default) received under any mortgage or insurance policy and comply with such notice provided same is correct;
2. Promptly deliver notice to the Buyer of all correspondence, actions, suits, claims and other proceedings of which the Involved Seller Representatives have received written notice, affecting the Property, or the use, possession or occupancy thereof received by the Involved Seller Representatives or of any lawsdamage or proposed taking or of any violations of any Hazardous Substances Laws of which notice was provided to the Involved Seller Representatives;
3. Promptly deliver copies of notices to Buyer of releases of Hazardous Material received by Involved Seller Representatives or any actual or threatened condemnation of the Property or any portion thereof, regulationswhich, to Seller’s Actual Knowledge, has been given by or on behalf of any federal, state or local agency;
4. Maintain all existing and current licenses, permits and governmental approvals (collectively referred to as the “Permits”) in full force and effect and promptly deliver notice to Buyer of any intention of Seller or its affiliates to seek any new Permit as well as copies of any written notices of violations;
5. Maintain the current insurance policies on the Property;
6. Seller agrees to cooperate with Buyer’s reasonable requests for documents or information in connection with Buyer’s acquisition of the Property (excluding forecasts, budgets and projections), provided there is no additional expense to Seller and that such information is readily available to Seller and that such cooperation does not create any additional financial obligations or liability for the Seller
B. Prior to the Closing Date, Seller shall not and shall cause its affiliates not to:
1. Modify, amend, renew, extend, terminate or otherwise alter any contracts of the Seller or its affiliates affecting the Property , which will remain in effect more than thirty (30) days after Closing, except for change orders relating to construction, which shall not require the consent of Buyer;
C. Buyer shall be notified by Seller promptly if the occurrence of any of the following has occurred to Seller’s Actual Knowledge: fire or other casualty causing damage to the Property, or ordinances any portion thereof; receipt of notice of eminent domain proceedings or other condemnation of or affecting the Property, or any portion thereof; receipt of notice from any governmental authority or quasi-governmental authorityinsurance underwriter relating to the condition, use or occupancy of the Property, or any portion there of, setting forth any requirements with respect thereto receipt of any notice of default under from the Leasesholder of any lien or security interest in or encumbering the Property, the Management Agreement or any other document portion thereof; notice of any actual litigation against Seller or agreement affecting or relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement any portion thereof; or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount commencement of any charges under the Franchise Agreement strike, lock-out, boycott or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on labor trouble affecting the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantorportion thereof.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Acadia Realty Trust)
Management of the Property. Grantor further covenants A. Prior to the Closing Date, Seller shall (or shall cause its affiliates to), at Seller’s sole cost and agrees with Beneficiary as followsexpense:
(a) Grantor shall cause the hotel located on 1. Maintain and operate the Property to be operated pursuant to in substantially the Franchise Agreement same condition and manner as the Management AgreementProperty is now maintained and operated.
(b) Grantor shall:
(i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly 2. Promptly deliver to Beneficiary Buyer a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate any notice issued or received by it under the Franchise Agreement or the Management Agreement;
Seller (iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any a notice of violation default) received under any mortgage, insurance policy or, to Seller’s Actual Knowledge, any Tenant Lease and comply with such notice provided same is correct;
3. Promptly deliver notice to the Buyer of any lawsall correspondence, regulationsactions, or ordinances or suits, claims and other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to proceedings affecting the Property, which contain information thator the use, if true, might materially adversely affect the value, use possession or operation occupancy thereof or of any damage or proposed taking or of any violations of any Hazardous Substances Laws;
4. Promptly deliver copies of notices to Buyer of releases of Hazardous Material or any actual or threatened condemnation of the Property.
(c) Grantor shall notProperty or any portion thereof, without Beneficiarywhich, to Seller’s prior written consent: (i) surrenderActual Knowledge, terminate has been given by or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount on behalf of any charges under federal, state or local agency;
5. Maintain all existing and current licenses, permits and governmental approvals (collectively referred to as the Franchise Agreement or the Management Agreement; (iv“Permits”) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights in full force and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name effect and promptly deliver notice to Buyer of any hotel chain intention of Seller or system other than “Residence Inn by Marriott”.its affiliates to seek any new Permit as well as copies of any written notices of violations;
(d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for 6. Maintain the management of the hotel current insurance policies on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.;
(e) Grantor irrevocably authorizes and directs Franchisor to 7. Promptly deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results Buyer copies of all quality assurance inspections any work orders or requirements of the Property performed by Franchisoragainst casualty loss which, to Seller’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably requestActual Knowledge, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have Seller has received and reviewed the proof that Seller has performed or commenced performing any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior such work orders or requirements where failure to the surrender, termination do so would result in a diminution of insurance against casualty loss;
8. Seller agrees to cooperate with Purchaser’s reasonable requests for documents or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities information in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms Buyer’s acquisition of the Management Agreement Property (excluding forecasts, budgets and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”projections), so long as, (i) Grantor provides Beneficiary with notice of provided there is no additional expense to Seller and that such information is readily available to Seller and that such cooperation does not create any additional financial obligations or liability for the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.Seller
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Acadia Realty Trust)
Management of the Property. Grantor further covenants and agrees with Beneficiary Upon obtaining possession of the Property or upon the appointment of a receiver as follows:
described in Section 7.03, the Beneficiary, the Trustees or the receiver, as the case may be, may, at their sole option, (a) Grantor shall cause make all necessary or proper repairs and Additions to or upon the hotel located Property, (b) operate, maintain, control, make secure and preserve the Property, (c) receive all Rents, and (d) complete the construction of any unfinished Improvements on the Property and, in connection therewith, continue any and all outstanding contracts for the erection and completion of such Improvements and make and enter into any further contracts which may be necessary, either in their or its own name or in the name of any Grantor (the cost of completing the Improvements shall be Expenses secured by this Deed of Trust and accrue interest as set forth in Section 4.17). In so doing, the Beneficiary, the Trustees or such receiver shall have the right to be operated pursuant to manage the Franchise Agreement Property and the Management Agreement.
(b) Grantor shall:
(i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe may exercise all of the covenants rights and agreements required powers of each Grantor with respect to be performed and observed by it under the Franchise Agreement and Property, either in the Management Agreement and do all things necessary name of each Grantor, or otherwise, including, but without limiting the generality of the foregoing, the right to preserve lease the Property, to cancel, modify, renew or extend any Lease or sub-lease of the Property and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of carry on any default under contracts entered into by any Grantor with respect to the Franchise Agreement Property. The Beneficiary, the Trustees or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary such receiver shall be under no obligationliability for, or by reason of, any such taking of possession, entry, holding, removal, maintaining, operation or management, except for gross negligence or willful misconduct. Any Rents received shall be applied (a) first, to pay any sums all Expenses, and to perform any act or take any action as may be appropriate to cause all (b) the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual optionbalance, if any, to extend or renew the term payment of the Franchise Agreement or Management Agreement upon other Obligations. The Grantors shall pay on demand by Beneficiary made at any time within one (1) year of to the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the LeasesBeneficiary, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement receiver or the Management Agreement; Trustees (iias the case may be) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under deficiency between (a) the Franchise Agreement Rents received by the Beneficiary, the receiver or the Management Agreement; Trustees, and (ivb) otherwise modify, change, supplement, alter or amend, all Expenses incurred together with interest thereon at the Reimbursement Rate as provided in Section 4.17. The exercise of the remedies provided in this Section shall not cure or waive or release any Event of its rights Default, and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name enforcement of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor such remedies, once commenced, shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing continue for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor so long as the monetary or business consideration which would obtain in Beneficiary shall elect, notwithstanding the fact that the exercise of such remedies may have, for a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in cured the possession original Event of Franchisor relating to Grantor not included in the reports referred to aboveDefault.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consent, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.
Appears in 1 contract
Sources: Leasehold Deed of Trust, Assignment and Security Agreement (Bioreliance Corp)
Management of the Property. Grantor further covenants Between the Effective Date of this Agreement and agrees with Beneficiary as follows:
the Closing Date: (ai) Grantor Sellers shall cause the hotel located on the Property to be operated pursuant to the Franchise Agreement operated, maintained and the Management Agreement.
(b) Grantor shall:
(i) pay all sums required to be paid by Grantor under the Franchise Agreement and the Management Agreement and promptly perform and/or observe all of the covenants and agreements required to be performed and observed by it under the Franchise Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary managed in writing of any default under the Franchise Agreement or the Management Agreement of which it is aware and provide Beneficiary with copies of any notices delivered in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Agreement or the Management Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor manner consistent with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation present management of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor Sellers shall not, without Beneficiary’s prior written consent, not enter into transactions with or amend any affiliate including, contract or agreement (except for renewals of expiring Service Contracts that are terminable without limitation, any arrangement providing for the management cost upon prior notice of the hotel thirty (30) days or less) that would remain binding on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections owner of the Property performed by Franchisor’s Quality Assurance Directorsafter the Closing without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed; provided that no consent shall be required for any contract that is terminable without cost upon prior notice of thirty (30) days or less; provided further, however, that Buyer may withhold its consent in its sole and absolute discretion to any new contract or agreement or amendment thereto that would remain binding on the owner of the Property after the Closing; and (iii) Sellers shall not enter into any Additional Occupancy Leases or any renewals, amendments or expansions of the Occupancy Leases without the prior written consent of Buyer, which consent Buyer may withhold in its sole and absolute discretion and which consent shall be deemed to have been withheld if Buyer fails to disapprove any renewal, amendment or expansion of any Occupancy Lease or any Additional Occupancy Lease submitted to it by Sellers during such other information that Beneficiary time period within five (5) Business Days after Buyer’s receipt thereof. On or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust prior to the contraryClosing, Grantor may, with Beneficiary’s prior written consent, which Seller shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or give notices to cancel the Franchise Agreement, in accordance with the terms each of the Franchise Agreement and enter Service Contracts listed in a new franchise agreement written notice delivered to Seller by Buyer no later than two (2) Business Days prior to the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination Closing Date. Buyer acknowledges that some or cancellation all of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor Service Contracts in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination effect as of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least Effective Date of this Agreement may require not less than thirty (30) days prior to the surrenderadvance notice of cancellation, termination and therefore, some or cancellation all of the Franchise Agreement, if applicable; (viii) requested Service Contracts may remain effective following the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management AgreementClosing Date, in accordance with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, which case: (i) Grantor provides Beneficiary with notice of the execution of Seller shall assign such Substitute Management Agreement, together with a true and correct copy of the Substitute Management Agreement Service Contracts to Buyer at Closing; and (ii) Substitute Manager enters in a Consent, Subordination Buyer shall be responsible for all payments required to be made under such Service Contracts for the period from the Closing Date through and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of including the date hereof in connection with the Hilton hotel loan in Ontario, Californiaon which such Service Contracts terminate.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gramercy Property Trust)
Management of the Property. Grantor further covenants and agrees with Beneficiary as follows, all to the extent Grantor has the ability, under the Operating Lease, other contract or otherwise, to control, direct or affect any of the following:
(a) Grantor shall cause the hotel located on the Property to be operated pursuant to the Franchise Management Agreement and the Management Franchise Agreement.
(b) Grantor shall:
(i) pay cause all sums required to be paid by Grantor Tenant under the Franchise Agreement and the Management Agreement and promptly perform and/or observe the Franchise Agreement to be paid and Tenant's performance and observance of all of the material covenants and agreements required to be performed and observed by it under the Franchise Management Agreement and the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunderFranchise Agreement;
(ii) promptly notify Beneficiary in writing of any default under the Franchise Management Agreement or the Management Franchise Agreement of which it is aware and provide Beneficiary with copies of any notices delivered by Grantor in connection therewith;
(iii) promptly deliver to Beneficiary a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Franchise Management Agreement or the Management Franchise Agreement;
(iv) cause Tenant to promptly enforce the performance and observance of all of the material covenants and agreements required to be performed and/or observed by Manager under the franchisor Management Agreement and Franchisor under the Franchise Agreement and the manager under the Management Agreement;
(v) assign to Beneficiary any right it may have to modify the Franchise Management Agreement or the Management Franchise Agreement;
(vi) grant Beneficiary the right, but Beneficiary shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement or Management Agreement on the part of Grantor to be performed or observed to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Franchise Agreement or Management Agreement shall be kept unimpaired and free from default;
(vii) use its reasonable efforts to obtain, from time to time, from the Manager or Franchisor and Manager such certificates of estoppel with respect to compliance by Grantor with the terms of the Franchise Agreement and the Management Agreement as may be reasonably requested by Beneficiary;
(viii) exercise each individual option, if any, to extend or renew the term of the Franchise Agreement or Management Agreement upon demand by Beneficiary made at any time within one (1) year of the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest; and
(ix) promptly notify Beneficiary in writing and provide Beneficiary with copies of any notices delivered to Grantor, including, without limitation, any notice of violation of any laws, regulations, or ordinances or other notice from any governmental or quasi-governmental authority, or any notice of default under the Leases, the Management Agreement or any other document or agreement relating to the Property, which contain information that, if true, might materially adversely affect the value, use or operation of the Property.
(c) Grantor shall not, without Beneficiary’s prior written consent: (i) surrender, terminate or cancel the Franchise Agreement or the Management Agreement; (ii) reduce or consent to the reduction of the term of the Franchise Agreement or the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement or the Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under the Franchise Agreement or the Management Agreement in any material respect; or (v) operate the Property under the name of any hotel chain or system other than “Residence Inn by Marriott”.
(d) Grantor shall not, without Beneficiary’s prior written consent, enter into transactions with any affiliate including, without limitation, any arrangement providing for the management of the hotel on the Property, the rendering or receipt of services or the purchase or sale of inventory, except any such transaction in the ordinary course of business of Grantor if the monetary or business consideration arising therefrom would be substantially as advantageous to Grantor as the monetary or business consideration which would obtain in a comparable transaction with a person not an affiliate of Grantor.
(e) Grantor irrevocably authorizes and directs Franchisor to deliver to Beneficiary: (i) all operating information concerning the Property submitted by Grantor to Franchisor; (ii) the written results of all quality assurance inspections of the Property performed by Franchisor’s Quality Assurance Directors; and (iii) such other information that Beneficiary or Beneficiary’s agents may reasonably request, from time to time, including any information in the possession of Franchisor relating to Grantor not included in the reports referred to above.
(f) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may, with Beneficiary’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, surrender, terminate or cancel the Franchise Agreement, in accordance with the terms of the Franchise Agreement and enter a new franchise agreement (the “Substitute Franchise Agreement”) with a substitute replacement franchisor (the “Substitute Franchisor”) so long as, at least forty-five (45) days prior (unless a shorter time period is approved by Beneficiary) to surrender, termination or cancellation of the Franchise Agreement, the following conditions are satisfied: (i) the Substitute Franchisor is either Hilton (with respect to the Homewood Suites brand) or Hyatt (with respect to the Summerfield Suites brand); (ii) the aggregate amount of fees payable to the Substitute Franchisor under the Substitute Franchise Agreement do not exceed the fees payable to the Franchisor under the existing Franchise Agreement; (iii) Beneficiary shall have received a comfort letter from the Substitute Franchisor in form and substance reasonably acceptable to Lender; (iv) the Substitute Franchise Agreement reflects an arms length transaction; (v) Grantor pays (or posts collateral with Lender which is sufficient to pay) any liquidated termination fee payable to Franchisor due to termination of the Franchise Agreement; (vi) Grantor escrows with Lender any and all amounts required under any Property Improvement Plan required by Substitute Franchisor, if applicable; (vii) Beneficiary shall have received and reviewed the any property improvement plan required by the Substitute Franchisor at least thirty (30) days prior to the surrender, termination or cancellation of the Franchise Agreement, if applicable; (viii) the Substitute Franchise Agreement shall have a term of not less than ten (10) years from the date of the substitution; and (ix) in the event the Loan has been securitized, if required by the applicable pooling and servicing agreement, Beneficiary shall have received a letter from the rating agency or agencies required to rate the securities in connection with such securitization certifying that the substitution of Franchise Agreement and Franchisor with the Substitute Franchise Agreement and Substitute Franchisor will not result in a downgrade of any rating applicable to the mortgage loan pool.
(g) Notwithstanding anything contained in this Deed of Trust to the contrary, Grantor may surrender, terminate or cancel the Management Agreement, in accordance Tenant with the terms of the Management Agreement and enter a new management agreement (the “Substitute Management Agreement”) with Innkeepers Hospitality Management, Inc., a Florida corporation (the “Substitute Manager”), so long as, (i) Grantor provides Beneficiary with notice of the execution of such Substitute Management or Franchise Agreement, together with a true and correct copy of the Substitute Management Agreement and (ii) Substitute Manager enters in a Consentrespectively, Subordination and Recognition Agreement with Beneficiary in substantially the same form entered into between Substitute Manager and Beneficiary as of the date hereof in connection with the Hilton hotel loan in Ontario, California.may be requested by Beneficiary;
Appears in 1 contract
Sources: Deed of Trust (Equity Inns Inc)