Franchise Agreement. The Improvements on the Properties shall be operated under the terms and conditions of the Franchise Agreements. Borrower shall (i) pay all sums required to be paid by Borrower under the Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Franchise Agreement, (iii) promptly notify Lender of the giving of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Franchise Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the Franchise Agreement. Borrower shall not, without the prior consent of Lender, surrender the Franchise Agreement or terminate or cancel the Franchise Agreement or modify, change, supplement, alter or amend the Franchise Agreement, in any material respect, either orally or in writing, and Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights and privileges of Borrower to surrender the Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any respect, and any such surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Franchise Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall, from time to time, use its best efforts to obtain from Franchisor such certificates of estoppel with respect to compliance by Borrower with the terms of the Franchise Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Mortgages and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Sources: Loan Agreement (Capital Lodging)
Franchise Agreement. The Improvements on (a) Except as provided in this Agreement, the Properties shall at all times be operated under in accordance with the terms and conditions of the Franchise Agreements. Borrower shall, or shall cause Mortgage Borrower or Operating Lessee to cause Manager to, (i) pay all sums required to be paid by Borrower Mortgage Borrower, Operating Lessee and/or Manager under the Franchise AgreementAgreements, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Franchise AgreementAgreements, (iii) promptly notify deliver to Lender of the giving a copy of any written notice to Mortgage Borrower or Operating Lessee of any default by Borrower in Mortgage Borrower, Operating Lessee and/or Manager under the performance or observance Franchise Agreements and notify Lender of any of the terms, covenants or conditions of material default under the Franchise Agreement on the part Agreements of Borrower to be performed and observed and which it is aware, (iv) promptly deliver to Lender a true copy of each such noticeany written notice to Franchisor of any default by Franchisor under the Franchise Agreements, and (ivv) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, noticenotice of non-performance, report report, and estimate (a) received by it Mortgage Borrower or Operating Lessee under the Franchise Agreement. Borrower shall notAgreements and (b) required to be delivered by Mortgage Borrower, without the prior consent of Lender, surrender Operating Lessee and/or Manager to Franchisor under the Franchise Agreement Agreements, (vi) complete all work required under any PIP on or terminate or cancel prior to the Franchise Agreement or modifyOutside Date, change, supplement, alter (vii) not modify or amend the Franchise AgreementAgreements to the extent such modification or amendment could reasonably be expected to have a Material Adverse Effect, and (viii) not terminate, cancel, or replace the Franchise Agreements (except as provided in subsection (b) below), nor replace the Franchisor, nor waive or release any of its rights and remedies under the Franchise Agreements in any material respect, either orally or in writing, and Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights and privileges of Borrower to surrender the Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any respect, and any such surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement without the Lender’s prior consent of Lender shall be void and of no force and effectwritten consent. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Franchise Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall, from time to time, use its best efforts to obtain from Franchisor such certificates of estoppel with respect to compliance Each request by Borrower with the terms of the Franchise Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, for approval and Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended consent by Lender pursuant to this paragraph Section 5.25 shall bear interest be in writing and be subject to the Deemed Approval Standard.
(b) Notwithstanding the foregoing, provided no Event of Default is continuing, Borrower shall have the right (or Borrower shall have the right to permit or cause Mortgage Borrower or Operating Lessee to permit Franchisor to), without the prior written approval of Lender (but upon prior written notice to Lender), to terminate a Franchise Agreement at an Individual Property; provided, however, it shall be an Event of Default hereunder in the event that (A) Borrower shall have failed to pay (or failed to cause Mortgage Borrower or Operating Lessee to pay) any termination fee or other amounts due to such Franchisor pursuant to the applicable Franchise Agreement within ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇ the time period specified in such Franchise Agreement, unless contested in good faith, (B) Borrower shall have failed to (w) deliver (or cause to be delivered) to Lender a PIP Guaranty to the extent required pursuant to the terms of this Agreement or (y) cause Mortgage Borrower to make the deposit required in connection with any New PIP pursuant to and in accordance with Section 9.9 of the Mortgage Loan Agreement or (C) within sixty (60) days of the termination of such Franchise Agreement, Borrower fails to (or fails to cause Operating Lessee to) deliver evidence reasonably acceptable to Lender that a Replacement Franchise Agreement with a Qualified Franchisor or a Replacement Management Agreement with a Brand Manager is in full force and effect at the Default Rate from applicable Individual Property.
(c) The Individual Property commonly known as the date Hilton Garden Inn Austin and located in Austin, Texas, failed its most recent “quality assurance” inspection. Attached hereto as Schedule 5.25 is a true, correct and complete list of the repairs required to be completed in order to resolve such cost is incurred quality assurance inspection failure. Borrower hereby covenants and agrees to cause Mortgage Borrower to complete such repairs to the date of payment extent necessary to Lenderresolve such failure in accordance with this Agreement, shall be deemed to constitute a portion of the DebtMortgage Loan Agreement, shall be secured by the lien of the Mortgages related Franchise Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender thereforall applicable laws.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Franchise Agreement. (a) The Improvements on the Properties shall be operated under the terms and conditions of the Franchise Agreements, if applicable. Borrower shall (i) pay all sums required to be paid by Borrower Operating Lessee under the Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower and/or Operating Lessee under the Franchise Agreement, (iii) promptly notify Lender of the giving of any notice to Borrower Operating Lessee of any default by Borrower Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the Franchise Agreement. Borrower shall not, without the prior consent of Lender, surrender the Franchise Agreement or terminate or cancel the Franchise Agreement or modify, change, supplement, alter or amend the Franchise Agreement, in any material respect, either orally or in writing, and Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights rights, privileges and privileges prerogatives of Borrower and Operating Lessee to surrender the Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any material respect, and any such surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement in any material respect without the prior consent of Lender shall be void and of no force and effect. .
(b) If Borrower Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower Operating Lessee to be performed or observedobserved after expiration of any applicable notice and cure periods provided in the Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed or observed to be promptly performed or observed on behalf of BorrowerOperating Lessee, to the end that the rights of Borrower Operating Lessee in, to and under the Franchise Agreement shall be kept unimpaired and free from defaultdefault in all material respects. Lender and any Person designated by Lender by written notice to Borrower shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall, from time to time, use its best efforts to obtain from Franchisor such certificates of estoppel with respect to compliance by Borrower Operating Lessee with the terms of the Franchise Agreement as may be requested by Lender. Borrower Operating Lessee shall exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercisedextent required to continue it in full force and effect until after the Maturity Date, and Borrower Operating Lessee hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in the name of and upon behalf of BorrowerOperating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Mortgages Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(c) Notwithstanding the foregoing, any such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement submitted to Lender for approval shall be deemed approved if (i) Borrower delivers to Lender a written request for such approval marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER. FAILURE TO RESPOND SHALL BE DEEMED AN APPROVAL.” and the envelope containing the request is marked “PRIORITY”; and (ii) Lender shall have failed to notify Borrower of its approval or disapproval within such fifteen (15) Business Days following Lender’s receipt of Borrower’s written request together with such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement, and any and all other information and documentation relating thereto reasonably required by Lender to reach a decision. In no event shall Lender be deemed to have approved (1) a surrender, termination or cancellation of the Franchise Agreement, (2) any change having a material adverse effect on Borrower’s costs or obligations under the Franchise Agreement, or (3) a new franchise agreement with a new franchisor. Upon Borrower’s request, Lender shall deliver to Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 5.1.21.
Appears in 1 contract
Franchise Agreement. The Improvements on the Properties (a) Each Franchised Property shall be operated under the terms and conditions of the applicable Franchise AgreementsAgreement. Borrower Borrowers shall (i) pay all sums required to be paid A/72912756.15 by Borrower Operating Lessee under the each Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the each Franchise Agreement on the part of Borrower Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of any Borrower and/or Operating Lessee under the any Franchise Agreement, (iii) promptly notify Lender Administrative Agent and the Lenders of the giving of any notice to Borrower Operating Lessee of any default by Borrower Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the any Franchise Agreement on the part of Borrower Operating Lessee to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the any Franchise Agreement. Borrower Borrowers shall not, without the prior consent of LenderAdministrative Agent, surrender the any Franchise Agreement or terminate or cancel the any Franchise Agreement or modify, change, supplement, alter or amend the any Franchise Agreement, in any material respect, either orally or in writing, and Borrower Borrowers hereby assigns assign to Lender Administrative Agent as further security for the payment of the Debt Obligations and for the performance and observance of the terms, covenants and conditions of this AgreementAgreement and the other Loan Documents, all the rights rights, privileges and privileges prerogatives of Borrower Borrowers and Operating Lessee to surrender the any Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the any Franchise Agreement in any material respect, and any such surrender of the any Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the any Franchise Agreement in any material respect without the prior consent of Lender Administrative Agent shall be void and of no force and effect. .
(b) If Borrower Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the any Franchise Agreement on the part of Borrower Operating Lessee to be performed or observedobserved after expiration of any applicable notice and cure periods provided in the Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing a Borrower from any of its obligations hereunder, Lender Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the any Franchise Agreement on the part of Borrower Operating Lessee to be performed or observed to be promptly performed or observed on behalf of BorrowerOperating Lessee, to the end that the rights of Borrower Operating Lessee in, to and under the such Franchise Agreement shall be kept unimpaired and free from defaultdefault in all material respects. Lender Administrative Agent and any Person designated by Lender Administrative Agent by written notice to Borrowers shall have, and are hereby granted, the right to enter upon the Collateral Properties at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to Lender Administrative Agent a copy of any notice sent to Borrower of default under the any Franchise Agreement, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by Lender Administrative Agent in good faith, in reliance thereon. Borrower Borrowers shall, from time to time, use its their best efforts to obtain from each Franchisor such certificates of estoppel with respect to compliance by Borrower Operating Lessee with the terms of the its Franchise Agreement as may be requested by LenderAdministrative Agent. Borrower Operating Lessee shall exercise each individual option, if any, to extend or renew the term of the its respective Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercisedextent required to continue it in full force and effect until after the Maturity Date, and Borrower each Operating Lessee A/72912756.15 hereby expressly authorizes and appoints Lender Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of BorrowerOperating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender Administrative Agent pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to LenderAdministrative Agent, shall be deemed to constitute a portion of the DebtObligations, shall be secured by the lien of the Mortgages and the other Loan Documents and shall be immediately due and payable upon demand by Lender Administrative Agent therefor.
(c) To the extent that Administrative Agent’s consent or approval is required under this Section 7.20, any such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A TERM LOAN AGREEMENT AMONG THE UNDERSIGNED, AND ADMINISTRATIVE AGENT AND OTHERS” and the envelope containing the request must be marked “PRIORITY”; and (ii) Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s receipt of Borrowers’ written request together with such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision. In no event shall Administrative Agent be deemed to have approved (1) a surrender, termination or cancellation of the Franchise Agreement, (2) any change having a Material Adverse Effect under the Franchise Agreement, or (3) a new franchise agreement with a new franchisor. Upon a Borrower’s request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.20.
Appears in 1 contract
Franchise Agreement. The Improvements on (a) Except as provided in this Agreement, the Properties shall at all times be operated under in accordance with the terms and conditions of the Franchise Agreements. Borrower shall, or shall cause Operating Lessee to cause Manager to, (i) pay all sums required to be paid by Borrower Borrower, Operating Lessee and/or Manager under the Franchise AgreementAgreements, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Franchise AgreementAgreements, (iii) promptly notify deliver to Lender of the giving a copy of any written notice to Borrower or Operating Lessee of any default by Borrower in Borrower, Operating Lessee and/or Manager under the performance or observance Franchise Agreements and notify Lender of any of the terms, covenants or conditions of material default under the Franchise Agreement on the part Agreements of Borrower to be performed and observed and which it is aware, (iv) promptly deliver to Lender a true copy of each such noticeany written notice to Franchisor of any default by Franchisor under the Franchise Agreements, and (ivv) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, noticenotice of non-performance, report report, and estimate (a) received by it Borrower or Operating Lessee under the Franchise Agreement. Borrower shall notAgreements and (b) required to be delivered by Borrower, without the prior consent of Lender, surrender Operating Lessee and/or Manager to Franchisor under the Franchise Agreement Agreements, (vi) complete all work required under any PIP on or terminate or cancel prior to the Franchise Agreement or modifyOutside Date, change, supplement, alter (vii) not modify or amend the Franchise AgreementAgreements to the extent such modification or amendment could reasonably be expected to have a Material Adverse Effect, and (viii) not terminate, cancel, or replace the Franchise Agreements (except as provided in subsection (b) below), nor replace the Franchisor, nor waive or release any of its rights and remedies under the Franchise Agreements in any material respect, either orally or in writing, and Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights and privileges of Borrower to surrender the Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any respect, and any such surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement without the Lender’s prior consent of Lender shall be void and of no force and effectwritten consent. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Franchise Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall, from time to time, use its best efforts to obtain from Franchisor such certificates of estoppel with respect to compliance Each request by Borrower with the terms of the Franchise Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, for approval and Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended consent by Lender pursuant to this paragraph Section 5.25 shall bear interest be in writing and be subject to the Deemed Approval Standard.
(b) Notwithstanding the foregoing, provided no Event of Default is continuing, Borrower shall have the right (or Borrower shall have the right to permit or cause Operating Lessee to permit Franchisor to), without the prior written approval of Lender (but upon prior written notice to Lender), to terminate a Franchise Agreement at an Individual Property; provided, however, it shall be an Event of Default hereunder in the event that (A) Borrower shall have failed to pay (or failed to cause Operating Lessee to pay) any termination fee or other amounts due to such Franchisor pursuant to the applicable Franchise Agreement within the time period specified in such Franchise Agreement, unless contested in good faith, (B) Borrower shall have failed to comply with the terms and provisions of Section 9.9 hereof, including, without limitation, failed to make the deposit required in connection with any New PIP pursuant to and in accordance with Section 9.9 hereof or (C) within sixty (60) days of the termination of such Franchise Agreement, Borrower fails to (or fails to cause Operating Lessee to) deliver evidence reasonably acceptable to Lender that a Replacement Franchise Agreement with a Qualified Franchisor or a Replacement Management Agreement with a Brand Manager is in full force and effect at the Default Rate from applicable Individual Property.
(c) The Individual Property commonly known as the date Hilton Garden Inn Austin and located in Austin, Texas, failed its most recent “quality assurance” inspection. Attached hereto ▇▇▇▇▇▇▇▇.▇▇.▇▇▇▇▇▇▇▇ 97 as Schedule 5.25 is a true, correct and complete list of the repairs required to be completed in order to resolve such cost is incurred quality assurance inspection failure. Borrower hereby covenants and agrees to complete such repairs to the date of payment extent necessary to Lenderresolve such failure in accordance with this Agreement, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Mortgages related Franchise Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender thereforall applicable laws.
Appears in 1 contract
Franchise Agreement. The Improvements on the Properties shall be operated under the terms (a) Each of Borrower and conditions of the Franchise Agreements. Borrower Operating Lessee shall (i) pay cause the hotel located on the Property to be operated pursuant to the Franchise Agreement; (ii) promptly perform and observe, in all sums material respects, all of the covenants required to be paid performed and observed by Borrower it under the Franchise Agreement, (ii) diligently perform, observe Agreement and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed, observed and enforced to the end that do all things shall be done which are reasonably necessary to preserve and to keep unimpaired the its material rights of Borrower under the Franchise Agreement, thereunder; (iii) promptly notify Lender of the giving of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of under the Franchise Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice, and which it is aware; (iv) if applicable, promptly upon request deliver to Lender a copy of each financial statement, business plan, capital expenditure expenditures plan, notice, report and estimate received by it under the Franchise Agreement (including, without limitation, notices of default, notices concerning any of the trademarks licensed under the Franchise Agreement and notices requiring Borrower to perform any repairs, alterations, improvements or remodeling to the Property); (v) promptly enforce in a commercially reasonable manner the performance and observance of all of the material covenants required to be performed and observed by the Franchisor under the Franchise Agreement; and (vi) deliver any franchisor comfort letters reasonably requested by Lender in form and substance reasonably acceptable to Lender. In addition, neither Borrower nor Operating Lessee shall not, without the Lender’s prior consent of Lender(A) surrender, surrender the Franchise Agreement or terminate or cancel the Franchise Agreement or reject the Franchise Agreement in a proceedings under Creditor’s Rights Laws; (B) reduce or consent to the reduction of the term of the Franchise Agreement; (C) materially increase or consent to the material increase of the amount of any charges under the Franchise Agreement; (D) otherwise modify, change, supplement, alter or amend amend, or waive or release any of its rights and remedies under, the Franchise Agreement in any material respect or (E) suffer or permit the occurrence or continuance of a default beyond any applicable cure period under the Franchise Agreement if such default permits Franchisor to terminate or cancel the Franchise Agreement.
(b) Neither Borrower nor Operating Lessee shall enter into any franchise or similar agreement other than the Franchise Agreement or renew the Franchise Agreement, in any material respecteach case, either orally or without the prior written consent of Lender, which consent may be withheld in writingLender’s sole and absolute discretion and may, and Borrower hereby assigns to Lender as further security for the payment at Lender’s option, be conditioned upon, among other things, Lender’s receipt of a Rating Agency Confirmation. Without limitation of the Debt and for the performance and observance foregoing, any renewal or replacement of the terms, covenants and conditions of this Franchise Agreement shall be with a Qualified Franchisor pursuant to a Replacement Franchise Agreement, all . In the rights and privileges event that the Franchise Agreement expires or is terminated (without limiting any obligation of Borrower to surrender the Franchise Agreement obtain Lender’s consent to any termination or to terminate, cancel, materially modify, change, supplement, alter or amend modification of the Franchise Agreement in any respectaccordance with the terms and provisions of this Agreement), and any Borrower and/or Operating Lessee shall, commensurately with such surrender expiration or termination, enter into a Replacement Franchise Agreement with Franchisor or another Qualified Franchisor, as applicable.
(c) By no later than the earlier of (i) twelve (12) months prior to the then current expiration date of the Franchise Agreement or termination(ii) the earliest renewal notice period permitted under the Franchise Agreement, cancellation, material modification, change, supplement, alteration or amendment Borrower and/or Operating Lessee shall have (1) either (A) applied for renewal of the Franchise Agreement without or (ii) applied for a replacement franchise agreement for the Property with a franchisor approved by Lender and (2) obtained Lender’s prior written consent of to the foregoing.
(d) Borrower and/or Operating Lessee shall provide Lender shall be void and of with no force and effect. If Borrower shall default in less than sixty (60) days prior written notice (such notice date, the performance or observance “Franchise Notice Date”) of any material term, covenant renewal or condition replacement of the Franchise Agreement on (the part “Franchise Replacement”). On or prior to the Franchise Notice Date, Borrower shall provide, or shall cause Operating Lessee to provide, Lender a draft of Borrower to be performed the proposed replacement or observed, thenrenewal franchise agreement and all documentation and information related thereto (including, without limiting the generality limitation, any applicable PIP requirements). Each of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunderforegoing shall be subject to Lender’s prior written approval. In connection with the foregoing, Lender shall have the right, but shall be under no obligation, to pay any sums at the sole cost 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 on the part of Borrower to be performed or observed to be promptly performed or observed on behalf expense of Borrower, to engage third party consultant(s) to review and approve each of the end that foregoing. The terms and conditions of this subsection (d) shall not be deemed to limit the rights other terms and conditions hereof or of the other Loan Documents. Notwithstanding the foregoing or anything herein to the contrary, Lender hereby approves the New Cleveland Franchise Agreement as a Franchise Replacement and consents to the termination of the Current Cleveland Franchise Agreement on or about March 3, 2013.
(e) Borrower inshall provide, or shall cause Operating Lessee to and under provide, Lender prior written notice of any new PIP (the “New PIP”) required in connection with the Franchise Agreement (including, without limitation, any Franchise Replacement). Borrower shall not agree to any New PIP without Lender’s prior written consent thereto (which such consent may be kept unimpaired conditioned upon, among other things, Lender’s engagement, at the sole cost and free from defaultexpense of Borrower, of third party consultant(s) to review and approve the New PIP). Lender and Prior to the effective date that any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower of default New PIP is imposed under the Franchise Agreement, Borrower shall deposit an amount equal to one hundred twenty-five percent (125%) of the cost of such notice new PIP as estimated by Borrower and approved by Lender (the “PIP Deposit Amount”), with such amount to be held in an account with Lender and shall constitute full protection be deemed an “Account” and “Reserve Account” (each as defined in the Cash Management Agreement) hereunder. Provided no Event of Default has occurred and is continuing, upon Lender’s receipt of evidence reasonably satisfactory to Lender that the New PIP has been completed and paid for any action taken in full or omitted to will be taken by Lender paid for in good faithfull upon such disbursement, in reliance thereon. Borrower shalla good, from time to time, use its best efforts to obtain from Franchisor such certificates of estoppel workmanlike and lien free manner in accordance with respect to compliance by Borrower with applicable Legal Requirements and the terms and conditions hereof and of the other Loan Documents, Lender shall release the PIP Deposit Amount to or as directed by Borrower.
(f) Borrower shall complete and pay for in full any PIP in a good, workmanlike and lien free manner within the time-frame set forth in the PIP. To the extent that Operating Lessee fails to perform any obligation under the Franchise Agreement as may be requested by Lender. Borrower shall exercise each individual option(including, if anywithout limitation, any obligation to extend or renew the term of the Franchise Agreement upon demand by Lender made at perform any time within one (1) year of the last day upon which any such option may be exercisedPIP), and Borrower hereby expressly authorizes and appoints grants Lender the right, as its Borrower’s and/or Operating Lessee’s attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, (which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest), to perform any such obligation and, if required, to enter the Property in order to perform the same. The aforesaid right of Lender shall be exercisable by Lender at Lender’s option and in Lender’s reasonable discretion. Any sums expended exercise by Lender pursuant to this paragraph shall bear interest at of the Default Rate from the date such cost is incurred to the date of payment to Lender, aforesaid right shall be deemed to constitute a portion exercised in accordance with the applicable terms and conditions hereof and of the Debt, shall be secured by the lien of the Mortgages and the other Loan Documents Documents.
(g) Following the occurrence and during the continuance of an Event of Default, neither Borrower nor Operating Lessee shall exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Franchise Agreement without the prior consent of Lender, which consent may be immediately due and payable upon demand by Lender thereforwithheld in Lender’s sole discretion.
Appears in 1 contract
Franchise Agreement. (a) The Improvements on the Properties shall be operated under the terms and conditions of the Franchise AgreementsAgreement. Borrower Operating Lessee shall (ia) pay all sums required to be paid by Borrower Operating Lessee under the Franchise Agreement, (iib) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Franchise Agreementenforced, (iiic) promptly notify Lender of the giving of any notice to Borrower Operating Lessee of any default by Borrower Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice, and (ivd) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the Franchise Agreement. Borrower .
(b) Operating Lessee shall not, without the prior written consent of Lender, surrender the Franchise Agreement or terminate or cancel the Franchise Agreement or modify, change, supplement, alter or amend the Franchise Agreement, in any material respect, either orally or in writing, and Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights and privileges of Borrower to surrender the Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any respect, and any such .
(c) Any surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement without the prior consent of Lender in violation hereof shall be void and of no force and effect. .
(d) If Borrower Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower to be performed or observedAgreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower Operating Lessee from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as Lender may be appropriate to cause all the termsdetermine, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrowerin its sole discretion, to cure the end that the rights of Borrower in, to and under the Franchise Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties Property at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower Operating Lessee of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower Operating Lessee shall, from time to time, use its best commercially reasonable efforts to obtain from Franchisor such certificates of estoppel with respect to compliance by Borrower Operating Lessee with the terms of the Franchise Agreement as may be requested by Lender. Borrower Operating Lessee shall exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower Operating Lessee hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in the name of and upon behalf of BorrowerOperating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien Lien of the Mortgages Security Instrument and the other Loan Documents Documents, and shall be immediately due and payable upon demand by Lender therefor.
Appears in 1 contract
Franchise Agreement. The (a) Subject to the provisions of Section 5.1.21(b), the Improvements on the Properties shall be operated under the terms and conditions of the Franchise Agreements, if applicable. Borrower shall cause Mortgage Borrower or Operating Lessee to (i) pay all sums required to be paid by Borrower Operating Lessee under the Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and/or Operating Lessee under the Franchise Agreement, (iii) promptly notify Lender of the giving of any notice to Mortgage Borrower and/or Operating Lessee of any default by Borrower Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the Franchise Agreement. Subject to the provisions of Section 5.1.21(b), Borrower shall cause Mortgage Borrower and/or Operating Lessee to not, without the prior consent of Lender, surrender the Franchise Agreement or terminate or cancel the Franchise Agreement or modify, change, supplement, alter or amend the Franchise Agreement, in any material respect, either orally or in writing, and Borrower hereby assigns . Subject to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights and privileges of Borrower to surrender the Franchise Agreement or to terminateMortgage Lender, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any respect, and any such surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement without the prior consent of Lender shall be void and of no force and effect. If Borrower if Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower Operating Lessee to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Borrower shall permit Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed or observed to be promptly performed or observed on behalf of BorrowerOperating Lessee, to the end that the rights of Mortgage Borrower and/or Operating Lessee in, to and under the Franchise Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender by written notice to Borrower shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower and Mortgage Borrower and/or Pledgor or Operating Lessee of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shallshall cause Mortgage Borrower and/or Operating Lessee, from time to time, use its best efforts to obtain from Franchisor such certificates of estoppel with respect to compliance by Borrower Operating Lessee with the terms of the Franchise Agreement as may be requested by Lender. Borrower shall cause Mortgage Borrower and/or Operating Lessee to exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercised, extent required to continue it in full force and Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in effect until after the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestMaturity Date. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Mortgages Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(b) With respect to the Expiring Franchise Agreement Property only, Borrower shall not be required to cause Mortgage Borrower to obtain Lender's consent or a confirmation from the Rating Agencies in the event that the Franchise Agreement in effect on the date hereof is extended on the same or more favorable terms to Mortgage Borrower and/or Operating Lessee, as applicable, prior to the expiration thereof.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Franchise Agreement. The Improvements on the Properties (a) Each Collateral Property shall be operated under the terms and conditions of the applicable Franchise AgreementsAgreement. Borrower Borrowers shall (i) pay all sums required to be paid by Borrower any Operating Lessee under the each Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the each Franchise Agreement on the part of Borrower such Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of any Borrower and/or Operating Lessee under the any Franchise Agreement, (iii) promptly notify Lender Administrative Agent of the giving of any notice to Borrower any Operating Lessee of any default by Borrower such Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the any Franchise Agreement. Borrower Borrowers shall not, without the prior consent of LenderAdministrative Agent, surrender the any Franchise Agreement or terminate or cancel the any Franchise Agreement or modify, change, supplement, alter or amend the any Franchise Agreement, in any material respect, either orally or in writing, and Borrower Borrowers hereby assigns assign to Lender Administrative Agent as further security for the payment of the Debt Obligations and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights rights, privileges and privileges prerogatives of Borrower Borrowers and Operating Lessees to surrender the any Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the any Franchise Agreement in any material respect, and any such surrender of the any Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the any Franchise Agreement in any material respect without the prior consent of Lender Administrative Agent shall be void and of no force and effect. .
(b) If Borrower any Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed or observedobserved after expiration of any applicable notice and cure periods provided in the Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing a Borrower from any of its obligations hereunder, Lender Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the any Franchise Agreement on the part of Borrower the respective Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Borrowersuch Operating Lessee, to the end that the rights of Borrower such Operating Lessee in, to and under the such Franchise Agreement shall be kept unimpaired and free from defaultdefault in all material respects. Lender Administrative Agent and any Person designated by Lender Administrative Agent by written notice to Borrowers shall have, and are hereby granted, the right to enter upon the Collateral Properties at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to Lender Administrative Agent a copy of any notice sent to Borrower of default under the any Franchise Agreement, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by Lender Administrative Agent in good faith, in reliance thereon. Borrower Borrowers shall, from time to time, use its their best efforts to obtain from each Franchisor such certificates of estoppel with respect to compliance by Borrower each Operating Lessee with the terms of the its Franchise Agreement as may be requested by LenderAdministrative Agent. Borrower Each Operating Lessee shall exercise each individual option, if any, to extend or renew the term of the its respective Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercisedextent required to continue it in full force and effect until after the Maturity Date, and Borrower each Operating Lessee hereby expressly authorizes and appoints Lender Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrowersuch Operating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender Administrative Agent pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to LenderAdministrative Agent, shall be deemed to constitute a portion of the DebtObligations, shall be secured by the lien of the Mortgages and the other Loan Documents and shall be immediately due and payable upon demand by Lender Administrative Agent therefor.
(c) Borrower shall not enter into any Replacement Franchise Agreement without Administrative Agent’s prior written consent; provided, however, that with respect to any expiring or replacement Franchise Agreement, Borrowers shall notify Administrative Agent, but shall not be required to obtain Administrative Agent’s consent if the Franchise Agreement in effect on the date hereof is extended (to result in a remaining term of such Franchise Agreement from the date of the delivery of such extension agreement equal to the terms then generally granted by the applicable Franchisor in the then prevailing market, but in no event shorter than seven (7) years) on the same or more favorable terms to the applicable Operating Lessee as prior to the expiration thereof, provided further that if such Franchise Agreement is modified, extended, supplemented or replaced a franchisor estoppel and recognition or other “comfort letter” shall be provided as described in clause (b) of the definition of “Replacement Franchise Agreement.” To the extent that Administrative Agent’s consent or approval is required under this Section 7.20, any such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND ADMINISTRATIVE AGENT” and the envelope containing the request must be marked “PRIORITY;” and (ii) Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s receipt of Borrowers’ written request together with such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision; provided, however, that in no event shall Administrative Agent be deemed to have approved (1) a surrender, termination or cancellation of the Franchise Agreement, (2) any modification, change, supplement, alteration or amendment of the Franchise Agreement that affects any of the material business terms of the Franchise Agreement, (3) any change under the Franchise Agreement that could result in a Material Property Event, or (4) a Replacement Franchise Agreement. Upon a Borrower’s request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.20.
Appears in 1 contract
Franchise Agreement. The (a) Subject to the provisions of Section 5.1.21(b), the Improvements on the Properties shall be operated under the terms and conditions of the Franchise Agreements, if applicable. Borrower shall cause Mortgage Borrower or Pledgor shall cause Operating Lessee to (i) pay all sums required to be paid by Borrower Operating Lessee under the Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgage Borrower and/or Operating Lessee under the Franchise Agreement, (iii) promptly notify Lender of the giving of any notice to Mortgage Borrower and/or Operating Lessee of any default by Borrower Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed and observed and deliver to Lender a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the Franchise Agreement. Subject to the provisions of Section 5.1.21(b), Borrower shall cause Mortgage Borrower and/or Pledgor shall cause Operating Lessee to not, without the prior consent of Lender, surrender the Franchise Agreement or terminate or cancel the Franchise Agreement or modify, change, supplement, alter or amend the Franchise Agreement, in any material respect, either orally or in writing, and Borrower hereby assigns . Subject to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights and privileges of Borrower to surrender the Franchise Agreement or to terminateMortgage Lender, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any respect, and any such surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement without the prior consent of Lender shall be void and of no force and effect. If Borrower if Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower Operating Lessee to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Borrower shall permit Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement on the part of Borrower Operating Lessee to be performed or observed to be promptly performed or observed on behalf of BorrowerOperating Lessee, to the end that the rights of Mortgage Borrower and/or Operating Lessee in, to and under the Franchise Agreement shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such action. Borrower shall cause Lender and any Person designated by Lender by written notice to Borrower shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower and Mortgage Borrower and/or Pledgor or Operating Lessee of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shallshall cause Mortgage Borrower and/or Pledgor shall cause Operating Lessee, from time to time, use its best efforts to obtain from Franchisor such certificates of estoppel with respect to compliance by Borrower Operating Lessee with the terms of the Franchise Agreement as may be requested by Lender. Borrower shall cause Mortgage Borrower and/or Pledgor shall cause Operating Lessee to exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercised, extent required to continue it in full force and Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in effect until after the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestMaturity Date. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Mortgages Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(b) With respect to the Expiring Franchise Agreement Property only, Borrower shall not be required to cause Mortgage Borrower to obtain Lender's consent or a confirmation from the Rating Agencies in the event that the Franchise Agreement in effect on the date hereof is extended on the same or more favorable terms to Mortgage Borrower and/or Operating Lessee, as applicable, prior to the expiration thereof.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Franchise Agreement. The Improvements on the Properties (a) Each Franchised Property shall be operated under the terms and conditions of the applicable Franchise AgreementsAgreement. Borrower Borrowers shall (i) pay all sums required to be paid by Borrower each Operating Lessee under the its Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the each Franchise Agreement on the part of Borrower each Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of any Borrower and/or each Operating Lessee under the any Franchise Agreement, (iii) promptly notify Lender Administrative Agent and the Lenders of the giving of any notice to Borrower either Operating Lessee of any default by Borrower such Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the any Franchise Agreement on the part of Borrower each Operating Lessee to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the any Franchise Agreement. Borrower Borrowers shall not, without the prior consent of LenderAdministrative Agent, surrender the any Franchise Agreement or terminate or cancel the any Franchise Agreement or modify, change, supplement, alter or amend the any Franchise Agreement, in any material respect, either orally or in writing, and Borrower provided, however, that Borrowers shall be entitled to terminate or cancel any Franchise Agreement that is replaced with a Replacement Franchise Agreement. Borrowers hereby assigns assign to Lender Administrative Agent as further security for the payment of the Debt Obligations and for the performance and observance of the terms, covenants and conditions of this AgreementAgreement and the other Loan Documents, all the rights rights, privileges and privileges prerogatives of Borrower Borrowers and Operating Lessees to surrender the any Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the any Franchise Agreement in any material respect, and any such surrender of the any Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the any Franchise Agreement in any material respect without the prior consent of Lender Administrative Agent shall be void and of no force and effect. .
(b) If Borrower either Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed or observedobserved after expiration of any applicable notice and cure periods provided in the Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing a Borrower from any of its obligations hereunder, Lender Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Borrowersuch Operating Lessee, to the end that the rights of Borrower such Operating Lessee in, to and under the such Franchise Agreement shall be kept unimpaired and free from defaultdefault in all material respects. Lender Administrative Agent and any Person designated by Lender Administrative Agent by written notice to Borrowers shall have, and are hereby granted, the right to enter upon the Collateral Properties at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to Lender Administrative Agent a copy of any notice sent to Borrower of default under the any Franchise Agreement, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by Lender Administrative Agent pursuant to the terms of this Agreement and any other Collateral Document in good faith, in reliance thereon. Borrower Borrowers shall, from time to time, use its their best efforts to obtain from each Franchisor such certificates of estoppel with respect to compliance by Borrower each Operating Lessee with the terms of the its Franchise Agreement as may be requested by LenderAdministrative Agent. Borrower Each Operating Lessee shall exercise each individual option, if any, to extend or renew the term of the its respective Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercisedextent required to continue it in full force and effect until after the Maturity Date, and Borrower each Operating Lessee hereby expressly authorizes and appoints Lender Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrowersuch Operating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender Administrative Agent pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to LenderAdministrative Agent, shall be deemed to constitute a portion of the DebtObligations, shall be secured by the lien of the Mortgages and the other Loan Documents and shall be immediately due and payable upon demand by Lender Administrative Agent therefor.
(c) To the extent that Administrative Agent's consent or approval is required under this Section 7.20, any such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT'S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A TERM LOAN AGREEMENT AMONG THE UNDERSIGNED, AND ADMINISTRATIVE AGENT AND OTHERS” and the envelope containing the request must be marked “PRIORITY”; and (ii) Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent's receipt of Borrowers' written request together with such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision. In no event shall Administrative Agent be deemed to have approved (1) a surrender, termination or cancellation of the Franchise Agreement, (2) any change having a Material Adverse Effect under the Franchise Agreement, or (3) a new franchise agreement with a new franchisor (other than a Replacement Franchise Agreement). Upon a Borrower's request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.20.
(d) Notwithstanding the foregoing, so long as no Event of Default exists and is continuing and no Material Adverse Effect and no Material Property Event (other than the Material Property Event caused by the subject default or event of default under the applicable Franchise Agreement, so long as it has not terminated) shall have occurred, Administrative Agent shall not take any action under Section 7.20(b) or (c)(ii) with respect to any default or event of default under any Franchise Agreement, if:
(A) either:
(1) Franchisor has not delivered a notice of termination or otherwise sought to terminate the Franchise Agreement and Borrower and Franchisor are diligently prosecuting resolution of the substantive issues underlying the default or event of default in good faith and in a commercially reasonable manner; or
(2) Franchisor has delivered a notice of termination or otherwise sought to terminate the Franchise Agreement but such termination is not yet effective, and:
Appears in 1 contract
Franchise Agreement. The Improvements on the Properties (a) Each Franchised Property shall be operated under the terms and conditions of the applicable Franchise AgreementsAgreement. Borrower Borrowers shall (i) pay all sums required to be paid by Borrower each Operating Lessee under the its Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the each Franchise Agreement on the part of Borrower each Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of any Borrower and/or each Operating Lessee under the any Franchise Agreement, (iii) promptly notify Lender Administrative Agent and the Lenders of the giving of any notice to Borrower either Operating Lessee of any default by Borrower such Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the any Franchise Agreement on the part of Borrower each Operating Lessee to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the any Franchise Agreement. Borrower Borrowers shall not, without the prior consent of LenderAdministrative Agent, surrender the any Franchise Agreement or terminate or cancel the any Franchise Agreement or modify, change, supplement, alter or amend the any Franchise Agreement, in any material respect, either orally or in writing, and Borrower provided, however, that Borrowers shall be entitled to terminate or cancel any Franchise Agreement that is replaced with a Replacement Franchise Agreement. Borrowers hereby assigns assign to Lender Administrative Agent as further security for the payment of the Debt Obligations and for the performance and observance of the terms, covenants and conditions of this AgreementAgreement and the other Loan Documents, all the rights rights, privileges and privileges prerogatives of Borrower Borrowers and Operating Lessees to surrender the any Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the any Franchise Agreement in any material respect, and any such surrender of the any Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the any Franchise Agreement in any material respect without the prior consent of Lender Administrative Agent shall be void and of no force and effect. .
(b) If Borrower either Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed or observedobserved after expiration of any applicable notice and cure periods provided in the Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing a Borrower from any of its obligations hereunder, Lender Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Borrowersuch Operating Lessee, to the end that the rights of Borrower such Operating Lessee in, to and under the such Franchise Agreement shall be kept unimpaired and free from defaultdefault in all material respects. Lender Administrative Agent and any Person designated by Lender Administrative Agent by written notice to Borrowers shall have, and are hereby granted, the right to enter upon the Collateral Properties at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to Lender Administrative Agent a copy of any notice sent to Borrower of default under the any Franchise Agreement, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by Lender Administrative Agent in good faith, in reliance thereon. Borrower Borrowers shall, from time to time, use its their best efforts to obtain from each Franchisor such certificates of estoppel with respect to compliance by Borrower each Operating Lessee with the terms of the its Franchise Agreement as may be requested by LenderAdministrative Agent. Borrower Each Operating Lessee shall exercise each individual option, if any, to extend or renew the term of the its respective Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercisedextent required to continue it in full force and effect until after the Maturity Date, and Borrower each Operating Lessee hereby expressly authorizes and appoints Lender Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrowersuch Operating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender Administrative Agent pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to LenderAdministrative Agent, shall be deemed to constitute a portion of the DebtObligations, shall be secured by the lien of the Mortgages and the other Loan Documents and shall be immediately due and payable upon demand by Lender Administrative Agent therefor.
(c) To the extent that Administrative Agent's consent or approval is required under this Section 7.20, any such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT'S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A TERM LOAN AGREEMENT AMONG THE UNDERSIGNED, AND ADMINISTRATIVE AGENT AND OTHERS” and the envelope containing the request must be marked “PRIORITY”; and (ii) Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent's receipt of Borrowers' written request together with such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision. In no event shall Administrative Agent be deemed to have approved (1) a surrender, termination or cancellation of the Franchise Agreement, (2) any change having a Material Adverse Effect under the Franchise Agreement, or (3) a new franchise agreement with a new franchisor. Upon a Borrower's request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.20.
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Franchise Agreement. The Improvements on the Properties (a) Each Franchised Property shall be operated under the terms and conditions of the applicable Franchise AgreementsAgreement. Borrower Borrowers shall (i) pay all sums required to be paid by Borrower each Operating Lessee under the its Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the each Franchise Agreement on the part of Borrower each Operating Lessee to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of any Borrower and/or each Operating Lessee under the any Franchise Agreement, (iii) promptly notify Lender Administrative Agent and the Lenders of the giving of any notice to Borrower either Operating Lessee of any default by Borrower such Operating Lessee in the performance or observance of any of the terms, covenants or conditions of the any Franchise Agreement on the part of Borrower each Operating Lessee to be performed and observed and deliver to Lender Administrative Agent a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender Administrative Agent a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the any Franchise Agreement. Borrower Borrowers shall not, without the prior consent of LenderAdministrative Agent, surrender the any Franchise Agreement or terminate or cancel the any Franchise Agreement or modify, change, supplement, alter or amend the any Franchise Agreement, in any material respect, either orally or in writing, and Borrower provided, however, that Borrowers shall be entitled to terminate or cancel any Franchise Agreement that is replaced with a Replacement Franchise Agreement. Borrowers hereby assigns assign to Lender Administrative Agent as further security for the payment of the Debt Obligations and for the performance and observance of the terms, covenants and conditions of this AgreementAgreement and the other Loan Documents, all the rights rights, privileges and privileges prerogatives of Borrower Borrowers and Operating Lessees to surrender the any Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the any Franchise Agreement in any material respect, and any such surrender of the any Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the any Franchise Agreement in any material respect without the prior consent of Lender Administrative Agent shall be void and of no force and effect. .
(b) If Borrower either Operating Lessee shall default in the performance or observance of any material term, covenant or condition of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed or observedobserved after expiration of any applicable notice and cure periods provided in the Franchise Agreement, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing a Borrower from any of its obligations hereunder, Lender Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the any Franchise Agreement on the part of Borrower such Operating Lessee to be performed or observed to be promptly performed or observed on behalf of Borrowersuch Operating Lessee, to the end that the rights of Borrower such Operating Lessee in, to and under the such Franchise Agreement shall be kept unimpaired and free from defaultdefault in all material respects. Lender Administrative Agent and any Person designated by Lender Administrative Agent by written notice to Borrowers shall have, and are hereby granted, the right to enter upon the Collateral Properties at any time and from time to time for the purpose of taking any such action. If any Franchisor shall deliver to Lender Administrative Agent a copy of any notice sent to Borrower of default under the any Franchise Agreement, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by Lender Administrative Agent pursuant to the terms of this Agreement and any other Collateral Document in good faith, in reliance thereon. Borrower Borrowers shall, from time to time, use its their best efforts to obtain from each Franchisor such certificates of estoppel with respect to compliance by Borrower each Operating Lessee with the terms of the its Franchise Agreement as may be requested by LenderAdministrative Agent. Borrower Each Operating Lessee shall exercise each individual option, if any, to extend or renew the term of the its respective Franchise Agreement upon demand by Lender made at any time within one (1) year of to the last day upon which any such option may be exercisedextent required to continue it in full force and effect until after the Maturity Date, and Borrower each Operating Lessee hereby expressly authorizes and appoints Lender Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrowersuch Operating Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender Administrative Agent pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to LenderAdministrative Agent, shall be deemed to constitute a portion of the DebtObligations, shall be secured by the lien of the Mortgages and the other Loan Documents and shall be immediately due and payable upon demand by Lender Administrative Agent therefor.
(c) To the extent that Administrative Agent’s consent or approval is required under this Section 7.20, any such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A REVOLVING CREDIT AGREEMENT AMONG THE UNDERSIGNED, AND ADMINISTRATIVE AGENT AND OTHERS” and the envelope containing the request must be marked “PRIORITY”; and (ii) Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s receipt of Borrowers’ written request together with such proposed modification, change, supplement, alteration or amendment of the Franchise Agreement and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision. In no event shall Administrative Agent be deemed to have approved (1) a surrender, termination or cancellation of the Franchise Agreement, (2) any change having a Material Adverse Effect under the Franchise Agreement, or (3) a new franchise agreement with a new franchisor (other than a Replacement Franchise Agreement). Upon a Borrower’s request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.20.
(d) Notwithstanding the foregoing, so long as no Event of Default exists and is continuing and no Material Adverse Effect and no Material Property Event (other than the Material Property Event caused by the subject default or event of default under the applicable Franchise Agreement, so long as it has not terminated) shall have occurred, Administrative Agent shall not take any action under Section 7.20(b) or (c)(ii) with respect to any default or event of default under any Franchise Agreement, if:
(A) either:
(1) Franchisor has not delivered a notice of termination or otherwise sought to terminate the Franchise Agreement and Borrower and Franchisor are diligently prosecuting resolution of the substantive issues underlying the default or event of default in good faith and in a commercially reasonable manner; or
(2) Franchisor has delivered a notice of termination or otherwise sought to terminate the Franchise Agreement but such termination is not yet effective, and:
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Franchise Agreement. (a) The Improvements on the Properties shall be operated under the terms and conditions of the Franchise Agreements. Borrower shall (i) pay all sums required to be paid by Borrower under the Franchise Agreement, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed, observed and enforced to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Franchise Agreement, (iii) promptly notify Lender of the giving of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Franchise Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice, and (iv) if applicable, promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the Franchise Agreement. Borrower shall not, without the prior consent of Lender, which consent shall not be unreasonably withheld, surrender the Franchise Agreement or terminate or cancel the Franchise Agreement or modify, change, supplement, alter or amend the Franchise Agreement, in any material respect, either orally or in writing, and Borrower hereby collaterally assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights rights, privileges and privileges prerogatives of Borrower to surrender the Franchise Agreement or to terminate, cancel, materially modify, change, supplement, alter or amend the Franchise Agreement in any respect, and any such surrender of the Franchise Agreement or termination, cancellation, material modification, change, supplement, alteration or amendment of the Franchise Agreement Agreement, not otherwise expressly allowed herein, without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Franchise Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Franchise Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Franchise Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Franchisor shall deliver to Lender a copy of any notice sent to Borrower of default under the Franchise Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall, from time to timetime (but no more than two (2) times per year when there is no occurrence and continuance of an Event of Default), use its best efforts to obtain from Franchisor such certificates of estoppel with respect to compliance by Borrower with the terms of the Franchise Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Franchise Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender as its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Notwithstanding the foregoing, Borrower shall not be required to extend or renew the term of any Franchise Agreement to any date that is more than one (1) year beyond the Maturity Date of the Loan. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Mortgages Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(b) In the event that Borrower receives notice of termination from any Franchisor and Borrower has not entered into a Replacement Franchise Agreement, Borrower shall, within thirty (30) days prior to the termination of such Franchise Agreement, deliver to Lender:
(i) a fully executed Replacement Franchise Agreement with an effective date as of the expiration of the Franchise Agreement being terminated and that is otherwise in accordance with Section 5.1.23 of this Agreement; and
(ii) a Franchisor Comfort Letter in accordance with Section 5.1.23 of this Agreement.
Appears in 1 contract