Exhibit 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated July 20, 1999
among
LODGIAN FINANCING CORP.,
LODGIAN, INC.,
SUBSIDIARIES LISTED IN SCHEDULE I HERETO,
and
MORGAN STANLEY & CO. INCORPORATED,
LEHMAN BROTHERS INC.
and
BEAR, STEARNS & CO. INC.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into July 20, 1999, among LODGIAN FINANCING CORP., a Delaware
corporation ("Lodgian Financing"), LODGIAN INC. ("Lodgian"), a Delaware
corporation and the sole stockholder of Lodgian Financing, and certain
subsidiaries of Lodgian Financing listed in Schedule I hereto (collectively, the
"Subsidiary Guarantors" and, together with Lodgian, the "Guarantors"), and
MORGAN STANLEY & CO. INCORPORATED, LEHMAN BROTHERS INC. and BEAR STEARNS & CO.
INC. (the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement dated
July 20, 1999, among Lodgian Financing, the Guarantors and the Placement Agents
(the "Placement Agreement"), which provides for the sale by Lodgian Financing to
the Placement Agents of an aggregate of $200,000,000 principal amount of Lodgian
Financing's 12 1/4% Senior Subordinated Notes Due 2009 (the "Securities"). The
obligations of Lodgian Financing under the Securities and the Indenture will be
unconditionally guaranteed on a senior subordinated unsecured basis by the
Guarantors pursuant to the terms of the Indenture (the "Guarantees"). In order
to induce the Placement Agents to enter into the Placement Agreement, Lodgian
Financing and the Guarantors have agreed to provide to the Placement Agents and
their direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Date" shall mean the Closing Date as defined in the
Placement Agreement.
"Exchange Offer" shall mean the exchange offer by Lodgian Financing
of Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
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"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by Lodgian
Financing which are unconditionally guaranteed on an unsecured senior
subordinated basis by the Guarantors under the Indenture containing terms
identical to the Securities, including the Guarantees (except that the
Exchange Securities will not contain restrictions on transfer), and to be
offered to Holders of Securities in exchange for Securities pursuant to
the Exchange Offer.
"Guarantees" shall have the meaning set forth in the preamble.
"Guarantors" shall have the meaning set forth in the preamble and
shall also include the Guarantors' successors.
"Holder" shall mean the Placement Agents, for so long as they own
any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture; provided that for purposes of
Sections 4 and 5 of this Agreement, the term "Holder" shall include
Participating Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the Securities to
be dated as of July 23, 1999 among Lodgian Financing, the Guarantors and
Bankers Trust Company, as trustee, and as the same may be amended from
time to time in accordance with the terms thereof.
"Lodgian" shall have the meaning set forth in the preamble and shall
also include Lodgian's successors.
"Lodgian Financing" shall have the meaning set forth in the preamble
and shall also include Lodgian Financing's successors.
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"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided
that whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by Lodgian Financing or any of its affiliates (as such term is
defined in Rule 405 under the 1933 Act) (other than the Placement Agents
or subsequent Holders of Registrable Securities if such subsequent holders
are deemed to be such affiliates solely by reason of their holding of such
Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage
or amount.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the preamble.
"Placement Agreement" shall have the meaning set forth in the
preamble.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
and in each case including all material incorporated by reference therein.
"Registrable Securities" shall mean the Securities and the
Guarantees; provided, however, that the Securities and the Guarantees
shall cease to be Registrable Securities (i) when a Registration Statement
with respect to such Securities and Guarantees shall have been declared
effective under the 1933 Act and such Securities and Guarantees shall have
been disposed of pursuant to such Registration Statement, (ii) when such
Securities and Guarantees have been sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under
the 1933 Act or (iii) when such Securities and Guarantees shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by Lodgian Financing and the Guarantors with
this Agreement, including, without limitation: (i) all SEC, stock exchange
or National Association of Securities Dealers, Inc. registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with
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state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or
Registrable Securities), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities
laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for Lodgian Financing and the
Guarantors and, in the case of a Shelf Registration Statement, the fees
and disbursements of one counsel for the Holders (which counsel shall be
selected by the Majority Holders and which counsel may also be counsel for
the Placement Agents) and (viii) the fees and disbursements of the
independent public accountants of Lodgian Financing and the Guarantors,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, but excluding
fees and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale
or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of
Lodgian Financing and the Guarantors that covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions of this
Agreement and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of Lodgian Financing and the Guarantors pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the
Registrable Securities (but no other securities unless approved by the
Holders whose Registrable Securities are covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
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"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Securities are sold to an Underwriter
for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, Lodgian Financing and the Guarantors
shall use their best efforts to cause to be filed an Exchange Offer Registration
Statement covering the offer by Lodgian Financing and the Guarantors to the
Holders to exchange all of the Registrable Securities for Exchange Securities
and to have such Registration Statement remain effective until the closing of
the Exchange Offer. Lodgian Financing and the Guarantors shall commence the
Exchange Offer promptly after the Exchange Offer Registration Statement has been
declared effective by the SEC and use their best efforts to have the Exchange
Offer consummated not later than 60 days after such effective date. Lodgian
Financing and the Guarantors shall commence the Exchange Offer by mailing the
related exchange offer Prospectus and accompanying documents to each Holder
stating, in addition to such other disclosures as are required by applicable
law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 business days from and including the date such notice is
mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal,
to the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to the
close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing
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his election to have such Securities exchanged; provided that withdrawal
rights may be revoked in connection with any extension of the Exchange
Offer.
As soon as practicable after the last Exchange Date, Lodgian
Financing and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by Lodgian Financing and the Guarantors and issue, and cause
the Trustee to promptly authenticate and mail to each Holder, an Exchange
Security equal in principal amount to the principal amount of the
Registrable Securities surrendered by such Holder.
Lodgian Financing and the Guarantors shall use their best efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
Lodgian Financing and the Guarantors shall inform the Placement Agents of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Placement Agents shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
(b) In the event that (i) Lodgian Financing and the Guarantors
determine that the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be consummated as soon as practicable after
the last Exchange Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason consummated by April 23, 2000 or (iii) the Exchange Offer has been
completed and in the opinion of counsel for the Placement Agents a Registration
Statement must be filed and a Prospectus must be delivered by the Placement
Agents in connection with any offering or sale of Registrable Securities,
Lodgian Financing and the Guarantors shall use their best efforts to cause to be
filed as soon as practicable after such determination, date or notice of such
opinion of counsel is given to Lodgian a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable Securities and to have
such Shelf Registration Statement declared effective by the SEC. In the event
Lodgian Financing and the Guarantors are required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause (iii) of the
preceding sentence, Lodgian Financing and the Guarantors shall use their best
efforts to file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer
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Registration Statement) with respect to offers and sales of Registrable
Securities held by the Placement Agents after completion of the Exchange Offer.
Lodgian Financing and the Guarantors agree to use their best efforts to keep the
Shelf Registration Statement continuously effective until the expiration of the
period referred to in Rule 144(k) with respect to the Registrable Securities or
such shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement. Lodgian Financing and the Guarantors further agree to
supplement or amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by Lodgian
Financing and the Guarantors for such Shelf Registration Statement or by the
1933 Act or by any other rules and regulations thereunder for shelf registration
or if reasonably requested by a Holder with respect to information relating to
such Holder, and to use their best efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable as soon as
thereafter practicable. Lodgian Financing and the Guarantors agree to furnish to
the Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Lodgian Financing and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) or Section
2(b). Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Securities
pursuant to such Shelf Registration Statement may legally resume. As provided
for in the Indenture, in the event the Exchange Offer is not consummated and the
Shelf Registration Statement is not declared effective (i) on or prior to
January 23, 2000, the interest rate on the Securities will be increased by 0.5%
per annum and (ii) on or prior to April 23, 1999, the interest rate on the
Securities will be increased by an additional 0.5% per annum. Once the Exchange
Offer is consummated or the Shelf Registration Statement is declared effective
by the SEC, the annual interest rate on the Securities shall be changed again to
the original interest rate shown in the second paragraph of this Agreement.
(e) Without limiting the remedies available to the Placement Agents
and the Holders, Lodgian Financing and the Guarantors acknowledge that any
failure by Lodgian Financing or any of the Guarantors to comply with its
respective obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Placement Agents or the Holders for which
there
8
is no adequate remedy at law, that it will not be possible to measure damages
for such injuries precisely and that, in the event of any such failure, the
Placement Agents or any Holder may obtain such relief as may be required to
specifically enforce Lodgian Financing's and the Guarantors' obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of Lodgian Financing and the
Guarantors with respect to the Registration Statements pursuant to Section 2(a)
and Section 2(b) hereof, Lodgian Financing and the Guarantors shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
Lodgian Financing and the Guarantors and (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by
the selling Holders thereof and (z) shall comply as to form in all
material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and
use their best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to Rule 424 under the 1933 Act;
to keep each Prospectus current during the period described under Section
4(3) and Rule 174 under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Placement Agents, to counsel
for the Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and Lodgian Financing and the
Guarantors consent to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities
covered by and in the manner described in such Prospectus or any amendment
or supplement thereto in accordance with applicable law;
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(d) use their best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with such Holders in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that neither Lodgian Financing nor any of the
Guarantors shall be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the
Placement Agents promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of Lodgian
Financing or any of the Guarantors contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material
respects or if Lodgian Financing or any of the Guarantors receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (v) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any changes
in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (vi) of any determination by Lodgian
Financing or any of the Guarantors that a post-effective amendment to a
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of
the withdrawal of any such order;
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(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends and enable such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders may
reasonably request at least one business day prior to the closing of any
sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their best efforts to
prepare and file with the SEC a supplement or post-effective amendment to
a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Lodgian Financing and the Guarantors agree to notify
the Holders to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and the Holders hereby agree to
suspend use of the Prospectus until Lodgian Financing and the Guarantors
have amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Placement Agents and their counsel (and, in the case of a
Shelf Registration Statement, the Holders and their counsel) and make such
of the representatives of Lodgian Financing and the Guarantors shall be
reasonably requested by the Placement Agents or their counsel (and, in the
case of a Shelf Registration Statement, the Holders or their counsel)
available for discussion of such document, and shall not at any time file
or make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Placement Agents and their counsel
(and, in the case of a Shelf Registration Statement, the Holders and their
counsel) shall not have previously been advised and furnished a copy or to
which the Placement Agents
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or their counsel (and, in the case of a Shelf Registration Statement, the
Holders or their counsel) shall object;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration
of the Exchange Securities or Registrable Securities, as the case may be,
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts
to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable manner,
all financial and other records, pertinent documents and properties of
Lodgian Financing and the Guarantors, and cause the respective officers,
directors and employees of Lodgian Financing and the Guarantors to supply
all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf
Registration Statement;
(n) in the case of a Shelf Registration, use their best efforts to
cause all Registrable Securities to be listed on any securities exchange
or any automated quotation system on which similar securities issued by
Lodgian Financing or any of the Guarantors are then listed if requested by
the Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;
(o) use their best efforts to cause the Exchange Securities to
continue to be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2) under the 1933
Act), if the Registrable Securities have been rated;
(p) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as Lodgian Financing or any of
the Guarantors have received notification of the matters to be
incorporated in such filing; and
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(q) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the disposition
of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business
of Lodgian and its subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (ii) obtain opinions of counsel to
Lodgian Financing and the Guarantors (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Holders and
such Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "cold comfort" letters from the independent certified public
accountants of Lodgian (and, if necessary, any other certified public
accountant of any subsidiary of Lodgian, or of any business acquired by
Lodgian for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to each
selling Holder and Underwriter of Registrable Securities, such letters to
be in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings, and
(iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of Lodgian Financing and
the Guarantors made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting
agreement.
In the case of a Shelf Registration Statement, Lodgian Financing and
the Guarantors may require each Holder of Registrable Securities to furnish to
Lodgian Financing and the Guarantors such information regarding the Holder and
the proposed distribution by such Holder of such Registrable Securities as
Lodgian may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from Lodgian Financing or any of the Guarantors
of the happening of any event of the kind described in Section 3(e)(v) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof,
and, if so directed by Lodgian, such Holder will deliver to Lodgian Financing
and the Guarantors (at its expense) all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If Lodgian Financing
13
or any of the Guarantors shall give any such notice to suspend the disposition
of Registrable Securities pursuant to a Registration Statement, Lodgian
Financing and the Guarantors shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. Lodgian Financing and the Guarantors may give any such notice
only twice during any 365 day period and any such suspensions may not exceed 30
days for each suspension and there may not be more than two suspensions in
effect during any 365 day period.
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities.
Lodgian Financing and the Guarantors understand that it is the
Staff's position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-Dealers may resell
the Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the
requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, each of Lodgian Financing and the Guarantors agree that the
provisions of this Agreement as they relate to a Shelf Registration shall also
apply to an Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Placement Agents or
by one or more Participating Broker-Dealers, in each case as provided in clause
(ii) below, in order to
14
expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) neither Lodgian Financing nor any of the Guarantors shall be
required to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after the last Exchange Date
(as such period may be extended pursuant to the penultimate paragraph of
Section 3 of this Agreement) and Participating Broker-Dealers shall not be
authorized by Lodgian Financing or any of the Guarantors to deliver and
shall not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth
in Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to Lodgian Financing and the Guarantors by the
Placement Agents or with the reasonable request in writing to Lodgian
Financing and the Guarantors by one or more broker-dealers who certify to
the Placement Agents and Lodgian Financing and the Guarantors in writing
that they anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an Exchange Offer
Registration, Lodgian Financing and the Guarantors shall be obligated (x)
to deal only with one entity representing the Participating
Broker-Dealers, which shall be Morgan Stanley & Co. Incorporated unless it
elects not to act as such representative, (y) to pay the fees and expenses
of only one counsel representing the Participating Broker-Dealers, which
shall be counsel to the Placement Agents unless such counsel elects not to
so act and (z) to cause to be delivered only one, if any, "cold comfort"
letter with respect to the Prospectus in the form existing on the last
Exchange Date and with respect to each subsequent amendment or supplement,
if any, effected during the period specified in clause (i) above.
(c) The Placement Agents shall have no liability to Lodgian
Financing, any of the Guarantors or any Holder with respect to any request that
it may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) Lodgian Financing and the Guarantors, each jointly and severally
agrees to indemnify and hold harmless the Placement Agents, each Holder and each
Person, if any, who controls any Placement Agent or any Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or
is under common control with, or is controlled by, any Placement Agent or any
Holder, from and against all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by any
Placement Agent, any Holder or any such
15
controlling or affiliated Person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) pursuant to which Exchange Securities or Registrable
Securities were registered under the 1933 Act, including all documents
incorporated therein by reference, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if Lodgian Financing or any of the Guarantors shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Placement Agents or any Holder
furnished to Lodgian in writing through Morgan Stanley & Co. Incorporated or any
selling Holder expressly for use therein; provided that the foregoing indemnity
with respect to any preliminary Prospectus shall not inure to the benefit of any
Holder from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities, or any person controlling such Holder, if a
copy of the final Prospectus (as then amended or supplemented if Lodgian
Financing and the Guarantors shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the final
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability. In connection with any
Underwritten Offering permitted by Section 3, Lodgian Financing and the
Guarantors will also indemnify the Underwriters, if any, selling brokers,
dealers and similar securities industry professionals participating in the
distribution, their officers and directors and each Person who controls such
Persons (within the meaning of the 1933 Act and the 1934 Act) to the same extent
as provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless Lodgian Financing, the Guarantors, the Placement Agents and the
other selling Holders, and each of their respective directors, officers who sign
the Registration Statement and each Person, if any, who controls Lodgian
Financing or any of the Guarantors, any Placement Agent and any other selling
Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the same extent as the foregoing indemnity from Lodgian
Financing and the Guarantors to the Placement Agents and the Holders, but only
with reference to information relating to such Holder furnished to Lodgian in
writing by such Holder expressly for use in any Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either
16
paragraph (a) or paragraph (b) above, such Person (the "indemnified party")
shall promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agents and all
Persons, if any, who control any Placement Agent within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
Lodgian Financing, the Guarantors, their respective directors and officers who
sign the Registration Statement and each Person, if any, who controls Lodgian
Financing and the Guarantors within the meaning of either such Section and (c)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any Holders within
the meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving the Placement Agents and
Persons who control the Placement Agents, such firm shall be designated in
writing by Morgan Stanley & Co. Incorporated. In such case involving the Holders
and such Persons who control Holders, such firm shall be designated in writing
by the Majority Holders. In all other cases, such firm shall be designated by
Lodgian. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
17
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of Lodgian
Financing, the Guarantors and the Holders shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by Lodgian Financing or any of the Guarantors on the one
hand or by the Holders on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
principal amount of Registrable Securities of such Holder that were registered
pursuant to a Registration Statement.
(e) Lodgian Financing, the Guarantors and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Placement Agents, any Holder or any Person controlling any Placement Agent
or any Holder, or by or on behalf of Lodgian Financing or any of the Guarantors,
their respective officers or directors or any Person controlling or any of the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement.
18
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither Lodgian Financing nor any of
the Guarantors has entered into, and on or after the date of this Agreement will
not enter into, any agreement which is inconsistent with the rights granted to
the Holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights granted to the
holders of Lodgian Financing's or any of the Guarantors' other issued and
outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Lodgian Financing and the Guarantors have obtained the
written consent of Holders of at least a majority in aggregate principal amount
of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or consent; provided, however, that no
amendment, modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
Lodgian by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Placement Agents,
the address set forth in the Placement Agreement; (ii) if to Lodgian Financing,
initially at Lodgian Financing's address set forth in the Placement Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(c); and (iii) if to the Guarantors,
initially the Guarantors' address set forth in the Placement Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
19
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Placement Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof. The
Placement Agents (in their capacity as Placement Agents) shall have no liability
or obligation to Lodgian Financing or any of the Guarantors with respect to any
failure by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. Neither Lodgian Financing nor
any of the Guarantors shall, and each of Lodgian Financing and the Guarantors
shall use their best efforts to cause their respective affiliates (as defined in
Rule 405 under the 1933 Act) not to, purchase and then resell or otherwise
transfer any Registrable Securities.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder among Lodgian Financing and the
Guarantors, on the one hand, and the Placement Agents, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
LODGIAN FINANCING CORP.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: Vice President
LODGIAN, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: Vice President
SHEFFIELD MOTEL ENTERPRISES, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
DOTHAN HOSPITALITY 3053, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
DOTHAN HOSPITALITY 3071, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
21
GADSDEN HOSPITALITY, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO FLAGSTAFF, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
LODGIAN ANAHEIM INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
LODGIAN ONTARIO INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO PENSACOLA, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
22
SERVICO PENSACOLA 7200, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO PENSACOLA 7330, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO FT. PIERCE, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
AMI OPERATING PARTNERS, L.P.
By: AMIOP Acquisition Corp.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO CENTRE ASSOCIATES, LTD.
By: Palm Beach Motel Enterprises, Inc.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
23
SERVICO WEST PALM BEACH, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO WINTER HAVEN, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO SILVER SPRING, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
ALBANY HOTEL, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO NORTHWOODS, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
24
SERVICO WINDSOR, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
BRUNSWICK MOTEL ENTERPRISES, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
LITTLE ROCK LODGING ASSOCIATES I, L.P.
BY IMPAC SPE #3, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: Vice President, Secretary
and Treasurer
ATLANTA HILLSBORO LODGING, LLC
By: /s/ Robert S. Cole
--------------------------
Name: Robert S. Cole
Title: Manager
LODGIAN RICHMOND, L.L.C.
BY LODGIAN RICHMOND SPE, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
25
SERVICO ROLLING MEADOWS, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO CEDAR RAPIDS, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO METAIRIE, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO COLUMBIA, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO COLESVILLE, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
26
SERVICO MARYLAND, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
NH MOTEL ENTERPRISES, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
MINNEAPOLIS MOTEL ENTERPRISES, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO ROSEVILLE, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
LODGIAN MOUNT LAUREL, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
27
SERVICO JAMESTOWN, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO NEW YORK, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO NIAGARA FALLS, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO GRAND ISLAND, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
FAYETTEVILLE MOTEL ENTERPRISES, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
28
APICO INNS OF GREEN TREE, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
APICO HILLS, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO HILTON HEAD, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO AUSTIN, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
SERVICO MARKET CENTER, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
29
SERVICO HOUSTON, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
Confirmed and accepted as of
the date first above written:
MORGAN STANLEY & CO. INCORPORATED
LEHMAN BROTHERS INC.
BEAR, STEARNS & CO. INC.
By: MORGAN STANLEY & CO. INCORPORATED
By /s/ David J. Frey
--------------------------
Name: David J. Frey
Title: Vice President
SCHEDULE I
LIST OF SUBSIDIARY GUARANTORS
Sheffield Motel Enterprises, Inc., an Alabama corporation
Dothan Hospitality 3053, Inc., an Alabama corporation
Dothan Hospitality 3071, Inc., an Alabama corporation
Gadsden Hospitality, Inc., an Alabama corporation
Servico Flagstaff, Inc., an Arizona corporation
Lodgian Anaheim Inc., a California corporation
Lodgian Ontario Inc., a California corporation
Servico Pensacola, Inc., a Delaware corporation
Servico Pensacola 7200, Inc., a Delaware corporation
Servico Pensacola 7330, Inc., a Delaware corporation
Servico Ft. Pierce, Inc., a Delaware corporation
AMI Operating Partners, L.P., a Delaware limited partnership
Servico Centre Associates, Ltd., a Florida corporation
Servico West Palm Beach, Inc., a Florida corporation
Servico Winter Haven, Inc., a Florida corporation
Servico Silver Spring, Inc., a Florida corporation
Albany Hotel, Inc., a Florida corporation
Servico Northwoods, Inc., a Florida corporation
2
Servico Windsor, Inc., a Florida corporation
Brunswick Motel Enterprises, Inc., a Georgia corporation
Little Rock Lodging Associates I, L.P., a Georgia limited partnership
Atlanta Hillsboro Lodging, LLC, a Georgia limited liability company
Lodgian Richmond, L.L.C., a Georgia limited liability company
Servico Rolling Meadows, Inc., an Illinois corporation
Servico Cedar Rapids, Inc., an Iowa corporation
Servico Metairie, Inc., a Louisiana corporation
Servico Columbia, Inc., a Maryland corporation
Servico Colesville, Inc., a Maryland corporation
Servico Maryland, Inc., a Maryland corporation
NH Motel Enterprises, Inc., a Michigan corporation
Minneapolis Motel Enterprises, Inc., a Minnesota corporation
Servico Roseville, Inc., a Minnesota corporation
Lodgian Mount Laurel, Inc., a New Jersey corporation
Servico Jamestown, Inc., a New York corporation
Servico New York, Inc., a New York corporation
Servico Niagara Falls, Inc., a New York corporation
Servico Grand Island, Inc., a New York corporation
Fayetteville Motel Enterprises, Inc., a North Carolina corporation
3
Apico Inns of Green Tree, Inc., a Pennsylvania corporation
Apico Hills, Inc., a Pennsylvania corporation
Servico Hilton Head, Inc., a South Carolina corporation
Servico Austin, Inc., a Texas corporation
Servico Market Center, Inc., a Texas corporation
Servico Houston, Inc., a Texas corporation