THE SUBSTITUTE TENANT.
4.3
FINANCING.
(A)
PURCHASER SHALL BE ENTITLED TO ENCUMBER THE HOTELS OR ANY OF THEM
WITH ONE OR MORE AUTHORIZED MORTGAGES WHICH ARE EXPRESSLY SUBORDINATE TO THIS
AGREEMENT OR IN CONNECTION WITH WHICH THE FOLLOWING TERMS AND CONDITIONS ARE
SATISFIED:
(I)
THE LOAN OR OTHER DEBT SECURED BY SUCH AUTHORIZED MORTGAGE SHALL NOT BE
CROSS-COLLATERALIZED WITH OTHER PROPERTY OR HOTELS WHICH ARE NOT MANAGED OR
FRANCHISED BY MANAGER, IHG OR THEIR RESPECTIVE AFFILIATES;
(II)
THE PRINCIPAL AMOUNT SECURED BY SUCH AUTHORIZED MORTGAGE SHALL NOT
EXCEED THE SUM OF SEVENTY-FIVE PERCENT (75%) (OR, IF LESS THAN FOUR (4) POOLED
FF&E HOTELS SECURE SUCH PRINCIPAL AMOUNT, SIXTY-FIVE PERCENT (65%)) OF THE SUM
OF THE FAIR MARKET VALUE AS OF THE DATE OF THE GRANTING OF SUCH AUTHORIZED
MORTGAGE OF THE PLEDGED HOTELS AND THE OTHER PROPERTIES SECURING SUCH PRINCIPAL
AMOUNT;
(III)
AS OF THE DATE OF THE GRANTING OF SUCH AUTHORIZED MORTGAGE, THE DEBT
SERVICE COVERAGE RATIO ASSOCIATED WITH SUCH LOAN OR DEBT SECURED THEREBY SHALL
NOT BE LESS THAN (I) 1.4 IF FEWER THAN FOUR (4) POOLED FF&E HOTELS SECURE SUCH
LOAN OR OTHER DEBT OR (II) 1.3 IF FOUR (4) OR MORE POOLED FF&E HOTELS SECURE
SUCH LOAN OR OTHER DEBT; AND
(IV)
THE HOLDER OF SUCH AUTHORIZED MORTGAGE SHALL EXECUTE AND DELIVER TO
MANAGER (MANAGER AGREEING TO LIKEWISE EXECUTE AND DELIVER TO SUCH HOLDER) A
SO-CALLED
35
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT WHICH SHALL PROVIDE
THAT:
(A)
THIS AGREEMENT AND MANAGER'S RIGHTS HEREUNDER ARE SUBJECT AND
SUBORDINATE TO THE AUTHORIZED MORTGAGE, THE LIEN THEREOF, THE RIGHTS OF THE
HOLDER THEREOF AND TO ANY AND ALL ADVANCES MADE THEREUNDER, INTEREST THEREON OR
COSTS INCURRED IN CONNECTION THEREWITH;
(B)
SO LONG AS THIS AGREEMENT IS IN FULL FORCE AND EFFECT AND THERE
EXISTS NO MANAGER DEFAULT WHICH HAS NOT BEEN CURED WITHIN ANY APPLICABLE NOTICE
OR GRACE PERIOD, MANAGER'S RIGHTS UNDER THIS AGREEMENT SHALL NOT BE DISTURBED BY
REASON OF SUCH SUBORDINATION OR BY REASON OF FORECLOSURE OF SUCH AUTHORIZED
MORTGAGE OR RECEIPT OF DEED IN LIEU OF FORECLOSURE;
(C)
MANAGER SHALL ATTORN TO THE HOLDER OR THE PURCHASER AT ANY SUCH
FORECLOSURE OR THE GRANTEE OF ANY SUCH DEED (EACH, A "SUCCESSOR PURCHASER");
(D)
IN THE EVENT OF SUCH ATTORNMENT, THE TERMS OF THIS AGREEMENT
BINDING ON PURCHASER AND MANAGER SHALL CONTINUE IN FULL FORCE AND EFFECT AS A
DIRECT AGREEMENT BETWEEN SUCH SUCCESSOR PURCHASER AND MANAGER, UPON ALL THE
TERMS, CONDITIONS AND COVENANTS SET FORTH HEREIN, EXCEPT THAT THE SUCCESSOR
PURCHASER SHALL NOT BE (1) BOUND BY ANY PAYMENT OF OWNER'S FIXED PRIORITY,
OWNER'S PERCENTAGE PRIORITY OR THE RESIDUAL DISTRIBUTION IN ADVANCE OF WHEN DUE;
(2) BOUND BY ANY AMENDMENT OR MODIFICATION OF THIS AGREEMENT MADE AFTER THE DATE
THAT MANAGER FIRST HAD WRITTEN NOTICE OF SUCH AUTHORIZED MORTGAGE WITHOUT THE
CONSENT OF THE HOLDER THEREOF; (3) LIABLE IN ANY WAY TO MANAGER FOR ANY ACT OR
OMISSION, NEGLECT OR DEFAULT ON THE PART OF PURCHASER OR OWNER UNDER THIS
AGREEMENT; (4) OBLIGATED TO PERFORM