EXHIBIT 10.30
WAIVER AND THIRD AMENDMENT
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Waiver and Third Amendment to Amended and Restated Loan and Security
Agreement (this "AMENDMENT") is dated as of March 21, 2005, by and between
ARLINGTON HOSPITALITY, INC., a Delaware corporation ("BORROWER") and LASALLE
BANK NATIONAL ASSOCIATION, a national banking association ("BANK").
RECITALS
WHEREAS, the Borrower and the Bank are parties to that certain Amended and
Restated Loan and Security Agreement dated as of April 30, 2003 (as the same has
previously been amended, as the same is amended hereby and as the same may be
further amended, modified or restated from time to time, the "LOAN AGREEMENT"),
evidencing, among other things, the making of a certain revolving loan by the
Bank to the Borrower;
WHEREAS, the Borrower has informed the Bank that it was in violation of
(i) the Tangible Net Worth covenant contained in Section 10.1 of the Loan
Agreement for the period ending December 31, 2004, (ii) the Debt Service
Coverage Ratio covenant contained in Section 10.2 of the Loan Agreement for the
period ending December 31, 2004 and (iii) the Annual Net Income covenant
contained in Section 10.6 of the Loan Agreement for the period ending December
31, 2004;
WHEREAS, the Borrower has now requested that the Bank (i) waive the
violations of the Tangible Net Worth, Debt Service Coverage and the Annual Net
Income covenants of the Loan Agreement for the period ending December 31, 2004;
(ii) amend the Tangible Net Worth and Debt Service Coverage Ratio covenants and
eliminate the Total Liabilities to Worth covenant contained in Section 10.2 of
the Loan Agreement; (iii) renew the Revolving Loan for a period of one year to
April 30, 2006; and (iv) restructure the Collateral; and
WHEREAS, the Bank has agreed to (i) waive the foregoing violations; (ii)
revise and eliminate the foregoing covenants; and (iii) renew the Revolving Loan
for a period of one year to April 30, 2006, among other things, in each case
pursuant to the terms and conditions contained herein, including, without
limitation, the addition of (a) a Guaranty by the Borrower's subsidiary,
Arlington Office Group, Inc. of the Borrower's Obligations and (b) the
continuation of a step down to the Revolving Loan Commitment.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and for other good and valuable consideration (the receipt, sufficiency and
adequacy of which are hereby acknowledged), the parties hereto hereby agree as
follows:
1. DEFINITIONS. Terms capitalized herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the Loan Agreement, as amended
from time to time.
2. ADDITION OF NEW DEFINITIONS TO LOAN AGREEMENT. The following new
defined terms are added to Article 1 (Definitions) in alphabetical order:
"Cendant Pledge Agreement" means that certain Collateral Assignment
and Security Agreement dated as of February 1, 2002 made by the Borrower
in favor of the Bank relating to the Cendant Agreement.
"Collateral Assignment of Proceeds Agreement" means that certain
Collateral Assignment of Proceeds Agreement dated as of March 21, 2005
made by the Borrower and AP Hotels of Oklahoma, Inc., an Oklahoma
corporation, in favor of the Bank relating to that certain Development
Agreement dated as of September 30, 2000 by and among the Borrower,
certain of the Borrower's subsidiaries and Cendant Finance Holding
Corporation and its subsidiary, AmeriHost Franchise Systems, Inc.,
relating to the Incremental Fee payable to the Borrower thereunder with
respect to the Borrower's Enid, Oklahoma property.
"Guarantor" shall mean Arlington Office Group, Inc., an Illinois
corporation.
"Guarantor Loan Agreement" shall mean that certain Loan Agreement
dated as of September 21, 2001 between the Guarantor and the Bank, as
heretofor or hereafter from time to time amended, restated, supplemented
or modified.
"Guaranty" shall mean that certain Continuing Unconditional Guaranty
dated as of March 21, 2005 and made by Guarantor in favor of the Bank.
"Non-Cash Impairment Charge Cap" shall mean (i) through and
including September 30, 2005, $950,000 and (ii) thereafter, $250,000.
"Pledge Agreement (2002)" means that certain Collateral Assignment,
Security Agreement and Pledge Agreement dated as of February 1, 2002 made
by Arlington Inns of Ohio, Inc. and API/Athens, OH, Inc. in favor of the
Bank.
"Pledge Agreement (2005)" means that certain Collateral Assignment,
Security Agreement and Pledge Agreement dated as of March 21, 2005 made by
the Borrower in favor of the Bank."
"Pledge Agreements" shall the Pledge Agreement (2002) and the Pledge
Agreement (2005).
3. AMENDMENTS TO LOAN AGREEMENT DEFINITIONS. The following defined terms
set forth in Article 1 (Definitions) of the Loan Agreement are hereby amended
and restated in their entirety as follows:
"Default Rate" shall mean a per annum rate of interest equal to the
Revolving Interest Rate plus four percent (4%) per annum.
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"EBITDA" shall mean, for any period, the sum of the following: (a)
Net Income (excluding extraordinary and unusual items and income or loss
attributable to equity in any affiliated corporation or Subsidiary but
including net deferred incentive fees due from Cendant pursuant to the
Cendant Agreement) for such period, plus (b) Interest Charges, plus (c)
income taxes payable or accrued, plus (d) Depreciation for such period,
plus (e) all other non-cash charges, including non-cash impairment charges
incurred in connection with the listing or marketing of specific hotel
properties for sale, in an amount not to exceed the Non-Cash Impairment
Charge Cap for a period of twelve (12) months immediately preceding the
date of determination, minus (f) that portion of net income arising out of
the sale of assets outside of the ordinary course of business (to the
extent not previously excluded under clause (a) of this definition), and
minus (g) the net loss attributable to the sale of those hotel properties
for which non-cash impairment charges were previously excluded under
clause (e) of this definition, which loss shall be recognized for the
purpose of determining "EBITDA" hereunder as of the date of sale of such
hotel property.
"Loan Documents" shall mean this Agreement (including all subsequent
amendments, restatements, supplements hereto or modifications hereof), the
Note (including any and all substitutions or replacements thereof), the
Mortgage, the Pledge Agreements, the Cendant Pledge Agreement, the
Collateral Assignment of Proceeds Agreement, the Guaranty and any and all
other agreements and documents delivered to the Bank as set forth in
Section 3.1 or from time to time delivered to the Bank in connection with
any amendments to this Agreement.
"Maturity Date" shall be April 30, 2006, unless extended by the Bank
pursuant to any modification, extension, substitution or renewal note
executed by the Borrower and accepted by the Bank in its sole and absolute
discretion.
"Mortgage" shall mean that certain Second Mortgage, Security
Agreement and Financing Statement made as of February 1, 2002 by AP
Properties of Ohio, Inc. in favor of the Bank, and recorded on February
26, 2002 with the Calloway County, Kentucky Recorder's Office in Book 418,
Page 279.
"Mortgaged Premises" shall mean the property subject to the Mortgage
and each of the properties held by entities whose equity is pledged to the
Bank pursuant to a Pledge Agreement.
"Obligations" shall mean (i) the Loans, as evidenced by the Note,
all interest accrued thereon, any fees due the Bank hereunder, any
expenses incurred by the Bank hereunder and any and all other liabilities
and obligations of the Borrower (and of any partnership in which the
Borrower is or may be a partner) to the Bank, howsoever created, arising
or evidenced, and howsoever owned, held or acquired, whether now or
hereafter existing, whether now due or to become due, direct or indirect,
absolute or contingent, and whether several, joint or joint and several,
including, but not limited to, under any of the Loan Document or under
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any Interest Rate Agreements and (ii) the "Obligations" of the Guarantor
to the Bank under and as defined in the Guarantor Loan Agreement.
"Revolving Loan Commitment" shall mean
(a) Four Million and 00/100 Dollars ($4,000,000.00) until and
including April 29, 2005;
(b) Three Million Five Hundred Thousand and 00/100 Dollars
($3,500,000.00) from and including April 30, 2005 until and
including July 30, 2005;
(c) Three Million and 00/100 Dollars ($3,000,000.00) from and
including July 31, 2005 until and including October 30, 2005; and
(d) Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00) from and including October 31, 2005 through and
including the Maturity Date;
in each case, as may be further reduced by (i) an amount equal to the net
proceeds to Borrower or any Subsidiary from the sale of any Mortgaged
Premises, after payment of the Senior Mortgage Indebtedness thereon and
costs of sale of such Mortgaged Premises (except to the extent the Bank,
in its sole discretion, agrees to accept a Mortgage on a Substitute
Mortgaged Premises in lieu of a further reduction of its commitment
hereunder) or (ii) such other reserves as the Bank determines in its sole
discretion.
4. AMENDMENTS TO ADDITIONAL COLLATERAL AND COVENANTS.
a. Section 6.2 (Additional Collateral) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
"6.2 Additional Collateral. In addition, the Obligations are also
secured by (i) the Mortgage, (ii) the Pledge Agreements, (iii) the
Collateral Assignment of Proceeds Agreement and (iv) the Cendant Pledge
Agreement."
b. Section 8.1(g) (Indebtedness) of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
"(g) obligations in respect of Indebtedness in favor of a lender
financing the development by the Borrower or its Subsidiaries
of Other Property, which is secured by a first priority (and
no other) mortgage Lien on such Other Property, and for which
the Borrower or a Subsidiary of the Borrower serves as project
developer;"
c. Section 10.1 (Tangible Net Worth) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
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"10.1 Net Worth. As at June 30, 2005 and as at the end of each of
its fiscal quarters thereafter, the Borrower and its Subsidiaries shall
maintain consolidated net worth (determined in accordance with GAAP) in an
amount not less than Five Million and 00/100 Dollars ($5,000,000.00)."
d. Section 10.2 (Total Liabilities to Worth) is hereby deleted in its
entirety and replaced with "[RESERVED]".
e. Section 10.3 (Debt Service Coverage Ratio) of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"10.3 Debt Service Coverage Ratio. As of June 30, 2005, and as at
the end of each of its fiscal quarters thereafter, the Borrower and its
Subsidiaries shall maintain a ratio of (a) consolidated EBITDA to (b)
consolidated Debt Service Charges of not less than 1.10 to 1.0, measure on
a trailing twelve (12) month basis for the twelve (12) fiscal month period
immediately preceding the end of such fiscal quarter."
f. Section 11.4 (Default under Other Agreements) is hereby amended by
deleting the period from the end thereof and adding the following text to the
end thereof:
", or an "Event of Default" under and as defined in the Guarantor Loan
Agreement."
5. SUBSTITUTE MORTGAGE NOTE. Exhibit A attached to the Loan Agreement
shall be deleted, and EXHIBIT A to this Amendment (the "REPLACEMENT REVOLVING
NOTE") shall be inserted in substitution therefore.
6. CONDITIONS PRECEDENT. The amendments contained in SECTIONS 2, 3, 4 and
5 herein are subject to, and contingent upon, the Bank receiving each of the
following items, each in form and substance acceptable to the Bank, dated of
even date herewith:
a. Amendment. Four duly executed counterparts of this Amendment signed by
the Borrower;
b. Replacement Revolving Note. A duly executed Replacement Revolving Note;
c. Guaranty. The Guaranty executed by the Guarantor in favor of the Bank,
in the form of EXHIBIT B attached hereto;
d. Pledge Agreement (2005). The Pledge Agreement (2005), executed by the
Borrower in favor of the Bank, in the form of EXHIBIT C attached hereto, and the
original stock certificates pledged thereunder, along with assignments separate
from certificate executed in blank;
e. Third Amendment to Mortgage. A Third Amendment to the Mortgage,
executed by the Mortgagor thereunder in favor of the Bank, in the form of
EXHIBIT D attached hereto;
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f. Collateral Assignment of Proceeds Agreement. The Collateral Assignment
of Proceeds Agreement executed by the parties thereto in the form of EXHIBIT E
attached hereto;
g. Secretary's Certificate. A Secretary's Certificate issued by the
Secretary of Borrower consisting of the following items: (i) certified
Certificate of Incorporation, (ii) By-laws, (iii) a resolution of the directors
of Borrower (A) authorizing the execution and delivery of this Amendment, the
Pledge Agreement (2005) and the other documents contemplated hereby, and (B)
consenting to the actions taken by Borrower in connection herewith and (iv) a
statement of incumbency;
h. Second Amendment to Guarantor Loan Agreement. A Second Amendment and
Reaffirmation of Guaranty executed by the Borrower, the Guarantor and the Bank
relating to the Guarantor Loan Agreement, in form and substance acceptable to
the Bank, and all agreements, documents, instruments, certificates and other
items required to be delivered by Guarantor to the Bank in connection therewith;
i. Tract Searches. Tract searches on the Mortgaged Premises, in each case
in form and substance acceptable to the Bank in all respects;
j. Opinion Letter. An opinion letter from Leon M. Vainikos, General
Counsel of the Borrower.
k. Fees. A commitment and covenant waiver fee of $40,000.00, which shall
be fully earned as of the date hereof, $20,000.00 of which shall be payable
concurrently with the execution of this Amendment and the remaining amount of
such shall be payable on, and Borrower hereby covenants and agrees to pay such
remaining balance on, July 31, 2005; and
l. Other items. Such other documents, certificates, schedules, exhibits,
instruments and agreements as the Bank shall reasonably request.
7. WAIVER AND FORBEARANCE. The Bank hereby waives (i) the violations
created by the Borrower's failure to be in compliance with the Tangible Net
Worth covenant contained in Section 10.1 of the Loan Agreement as of December
31, 2004 and for any period prior thereto and any Event of Default created
thereby, (ii) the violation created by the Borrower's failure to be in
compliance with the Debt Service Coverage Ratio covenant contained in Section
10.3 of the Loan Agreement as of December 31, 2004 and for any period prior
thereto and any Event of Default created thereby and (iii) the violation created
by the Borrower's failure to be in compliance with the Annual Net Income
covenant contained in Section 10.6 of the Loan Agreement as of December 31, 2004
and for any period prior thereto and any Event of Default created thereby. This
waiver shall be a limited waiver for the time period stated herein and shall not
constitute a course of conduct or dealing. Additionally, except as expressly
provided herein, this Amendment shall not constitute a waiver of any existing
defaults of the Borrower, and the Bank expressly reserves and retains all of its
rights and remedies under the Loan Agreement with respect to this or any other
violations or breaches of the Loan Agreement. Moreover, the Bank hereby agrees
to forbear from pursuing any of its rights and remedies under the Loan Agreement
as a result of the Events of Default created by the foregoing violations,
subject to the terms and provisions hereof.
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8. REAFFIRMATION OF AGREEMENTS. The Borrower acknowledges and agrees that
the following agreements remain in full force and effect, agrees to continue to
be bound thereby and expressly reaffirms its obligations thereunder:
i. The Cendant Pledge Agreement;
ii. That certain Environmental Indemnity Agreement dated as
of February 1, 2002 made by the Borrower in favor of the
Bank (the "Environmental Indemnity"), as such
Environmental Indemnity relates to the property subject
to the Mortgage; and
iii. The Pledge Agreement (2002).
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9. RELEASES. The Bank:
a. Agrees to release the following mortgages:
i. Open-End Second Leasehold Mortgage, Assignment of Leases
and Rents and Security Agreement in favor of Mortgagee
dated as of February 1, 2002 and recorded in the
Franklin County Recorder's Office on February 26, 2002
as Instrument No. 200202260050110;
ii. Second Mortgage, Security Agreement and Financing
Statement dated as of April 30, 2003 and recorded in the
Cook County Recorder's Office on July 2, 2003 as
Document No. 0318339129;
iii. Open-End Second Leasehold Mortgage, Assignment of Leases
and Rents and Security Agreement in favor of Mortgagee
dated as of February 1, 2002 and recorded in the
Guernsey County Recorder's Office on February 26, 2002
in Book 307, Pages 410-460 and as Document No.
200200001519; and
iv. Open-End Second Mortgage, Assignment of Leases and Rents
and Security Agreement in favor of Mortgagee dated as of
February 1, 2002 and recorded in the Clinton County
Recorder's Office on February 27, 2002 in Book 415,
Pages 879-927 and as Document No. 2002-00041610; and
b. Hereby agrees and confirms that as of the date of this Amendment, the
Borrower's properties located in Batesville, Mississippi, Columbus SE, Ohio, St.
Mary's Ohio, Wilmington, Ohio and Cambridge, Ohio are no longer subject to the
negative pledge set forth in Section 8.2 of the Loan Agreement.
10. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Bank that on and as of the date hereof and after giving effect
to this Amendment:
a. The Borrower has the power and authority to execute, deliver and
perform its obligations under this Amendment. This Amendment has been duly
authorized by all necessary corporate action of the Borrower. This Amendment
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against each Borrower in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar law affecting
creditor's rights generally and general principles of equity.
b. The execution and delivery of this Amendment and the performance by the
Borrower of its obligations under the Loan Agreement, as amended hereby, do not
and will not conflict with any provision of law or of the charter or bylaws of
the Borrower or of any agreement binding upon the Borrower.
c. As of the date hereof, no Event of Default under the Loan Agreement or
event or condition which, with the giving of notice or the passage of time,
shall constitute an Event of Default, has occurred or is continuing.
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d. As of the date hereof, the representations and warranties of the
Borrower in the Loan Agreement are true and correct as though made of even date
herewith, except to the extent that such representations and warranties
expressly relate to an earlier date.
11. REFERENCE TO LOAN AGREEMENT; NO WAIVER.
a. References. Upon the effectiveness of this Amendment, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Loan Agreement, as amended
hereby.
b. No Waiver. The Bank's failure, at any time or times hereafter, to
require strict performance by the Borrower of any provision or term of the Loan
Agreement or this Amendment shall not waive, affect or diminish any right of the
Bank hereafter to demand strict compliance and performance herewith or
therewith. Any suspension or waiver by the Bank of a breach of this Amendment or
any Event of Default under the Loan Agreement shall not suspend, waive or affect
any other breach of this Amendment or any Event of Default under the Loan
Agreement or other Loan Documents, whether the same is prior or subsequent
thereto and whether of the same or of a different kind or character. None of the
undertakings, agreements, warranties, covenants and representations of the
Borrower contained in this Amendment, shall be deemed to have been suspended or
waived by the Bank unless such suspension or waiver is (i) in writing and signed
by the Bank, and (ii) delivered to the Borrower. In no event shall the Bank's
execution and delivery of this Amendment establish a course of dealing among the
Bank, the Borrower or other obligor, or in any other way obligate the Bank to
hereby provide any amendments or waivers with respect to the Loan Agreement. The
terms and provisions of this Amendment shall be limited precisely as written
and, except as provided in Section 4 hereof, shall not be deemed (i) to be a
consent to or a modification or waiver of any other term or condition of the
Loan Agreement or other Loan Documents or (ii) to prejudice any right or remedy
which the Bank may now have under or in connection with the Loan Agreement.
c. Full Force and Effect. The Loan Agreement and other Loan Documents
shall remain in full force and effect and are hereby ratified and confirmed.
12. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, however, the Borrower may not assign any of its rights or
obligations under this Amendment without the prior written consent of Bank.
13. SEVERABILITY. Wherever possible, each provision of this Amendment
shall be interpreted in such a manner so as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be prohibited
by or invalid under applicable law, such provision or provisions shall be
ineffective only to the extent of such provision or invalidity, without
invalidating the remainder of this Amendment.
14. GOVERNING LAW. This Amendment shall be deemed to be a contract made
under the laws of the State of Illinois, and the rights and obligations of the
parties hereunder shall be construed in accordance with and be enforced and
governed by the internal laws of the State of Illinois, without regard to choice
of law or conflicts of law principles.
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15. RELEASE BY THE BORROWER. In further consideration of Bank's execution
of this Amendment, the Borrower hereby forever remises, releases, acquits,
satisfies and forever discharges the Bank and their successors, assigns,
affiliates, officers, employees, directors, agents and attorneys (collectively,
the "RELEASEES") from any and all claims, demands, liabilities, disputes,
damages, suits, controversies, penalties, fees, costs, expenses, actions and
causes of action (whether at law or in equity) and obligations of every nature
whatsoever whether liquidated or unliquidated, known or unknown, matured or
unmatured, fixed or contingent, that the Borrower ever had, now have, or may
have against or seek from any or all of the Releasees, which arise from or
relate to any actions which any or all of the Releasees may have taken or
omitted to take prior to the date this Amendment was executed, including,
without limitation, with respect to the Loan Agreement and other Loan Documents,
other than for the Bank's gross negligence or willful misconduct. The Borrower
acknowledges that the Bank is specifically relying upon the representations,
warranties and agreements contained herein and that such representations,
warranties and agreements constitute a material inducement to the Bank in
entering into this Amendment.
16. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument, admissible into evidence.
17. RECITALS. The Recitals set forth above are hereby incorporated herein
and made a part hereof.
18. NO IMPAIRMENT. The Borrower and the Bank intend that this Amendment
shall not in any manner constitute a novation and shall in no way adversely
affect, diminish or impair the Loan Agreement, the Loan Documents or the liens
created thereby securing the payment of the Obligations and that such liens are
and shall be and remain prior liens and shall not in any manner be waived or
subordinated, the purpose of this Amendment being to carry forward all liens
security the Obligations, which are acknowledged by the parties hereto to be
valid and subsisting.
19. FURTHER MODIFICATIONS. The Borrower acknowledges and agrees that by
the granting of this Amendment, the Bank shall not be in any way obligated to
further modify, extend, or amend the Loan Agreement or the Loan Documents, or to
forebear or forestall any collection efforts or other remedies it may have under
the Loan Agreement or the Loan Documents or at law.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to Loan
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: ARLINGTON HOSPITALITY, INC.,
a Delaware corporation
By: /s/ James B. Dale
------------------------------
Name: James B. Dale
Title: Secretary
Attest:
By: /s/ Leon M. Vainikos
------------------------------
Name: Leon M. Vainikos
Title: Assistant Secretary
BANK: LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Alan L. Clark
------------------------------
Name: Alan L. Clark
Title: Senior Vice President
EXHIBIT A
FORM OF
REPLACEMENT
REVOLVING NOTE
REPLACEMENT
REVOLVING NOTE
$4,000,000.00 Chicago, Illinois
Dated: March 21, 2005
Due: April 30, 2006
FOR VALUE RECEIVED, ARLINGTON HOSPITALITY, INC., a Delaware
corporation (together with its respective successors and assigns, individually
and collectively, the "BORROWER"), promises to pay to the order of LASALLE BANK
NATIONAL ASSOCIATION, a national banking association (the "BANK"), the principal
sum of FOUR MILLION AND 00/100 DOLLARS ($4,000,000.00), or, if less, the
aggregate unpaid principal amount of all advances made by the Bank to the
Borrower hereunder, on April 30, 2006.
This Note is a Replacement Revolving Note issued pursuant to an
Amended and Restated Loan and Security Agreement dated as of April 30, 2003 (as
heretofore or hereafter amended, restated, modified or supplemented, the "LOAN
AGREEMENT") by and between the Borrower and the Bank, to which Loan Agreement
reference is hereby made for a statement of the terms and conditions under which
the Revolving Loans evidenced hereby may be made and a description of the terms
and conditions upon which this Note may be prepaid in whole or in part, but
shall not constitute payment of that certain Second Amended and Restated
Revolving Note dated as of April 30, 2004 or constitute a novation thereof. In
case an Event of Default, as defined in the Loan Agreement, shall occur, the
entire unpaid principal and accrued interest may be automatically due and
payable or may be declared due and payable as provided in the Loan Agreement.
The unpaid principal shall bear interest from the date hereof until
paid as set forth in the Loan Agreement. Interest shall be payable in accordance
with the terms of the Loan Agreement.
This Note is subject to optional and mandatory prepayment in certain
circumstances, all as set forth in the Loan Agreement.
In the event that any installment of the principal of, or interest
on, this Note, is not paid when due (whether at stated maturity, by acceleration
or otherwise), the entire principal amount outstanding shall bear interest at an
annual rate equal to the Revolving Interest Rate (as defined in the Loan
Agreement) plus four percent (4%) per annum, from the due date until all overdue
amounts have been paid in full.
Payments of both principal and interest are to be made in lawful
money of the United States of America at the offices of the Bank at 135 South
LaSalle Street, Chicago, Illinois 60603, or at such other place as the holder
shall designate in writing to the maker.
This Note is secured by a security interest in the Collateral (as
defined in the Loan Agreement) and by the Mortgage, the Guaranty, the Pledge
Agreements and the Cendant Pledge Agreement.
The maker and all endorsers hereby severally waive presentment for
payment, protest and demand, notice of protest, demand and of dishonor and
nonpayment of this Note. Borrower hereby agrees to pay all reasonable fees and
expenses incurred by the Bank or any subsequent holder, including the reasonable
fees of counsel, in connection with protection and enforcement of the rights of
the Bank or any subsequent holder under this Note, including without limitation
the collection of any amounts due under this Note and the protection and
enforcement of such rights in any bankruptcy, reorganization or insolvency
proceeding involving the Borrower.
This Note is binding upon Borrower and its successors and assigns
and shall inure to the benefit of the Bank and its successors and assigns. This
Note is made under and governed by the laws of the State of Illinois, without
regard to conflicts of laws principles.
IN WITNESS WHEREOF, Borrower has executed this Replacement Revolving
Note as of the day and year first above written.
ARLINGTON HOSPITALITY, INC.,
a Delaware corporation
By: /s/ James B. Dale
-----------------
Its: Secretary
Name: James B. Dale
Attest:
By: /s/ Leon M. Vainikos
--------------------
Name: Leon M. Vainikos
Title: Assistant Secretary
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EXHIBIT B
FORM OF
GUARANTY
EXHIBIT C
FORM OF
PLEDGE AGREEMENT (2005)
EXHIBIT D
FORM OF
THIRD AMENDMENT TO MURRAY, KENTUCKY SECOND MORTGAGE
EXHIBIT E
FORM OF
COLLATERAL ASSIGNMENT OF PROCEEDS AGREEMENT