Exhibit 10.2
EXHIBIT D TO THE
CREDIT AGREEMENT
AS EXECUTED
SECURITY AGREEMENT
Dated July 23, 1999
From
LODGIAN FINANCING CORP.,
SERVICO, INC.,
IMPAC HOTEL GROUP, LLC,
and
THE OTHER GRANTORS REFERRED TO HEREIN
as Grantors,
to
MORGAN STANLEY SENIOR FUNDING, INC.
as Collateral Agent
TABLE OF CONTENTS
Section Page
1. Grant of Security 2
2. Security for Obligations 6
3. Grantors Remain Liable 6
4. Delivery and Control of Security Collateral, Account Collateral or
Agreement Collateral 6
5. Maintaining the Pledged Accounts 7
6. Maintaining the Collateral Account and the L/C Collateral Account 7
7. Investing of Amounts in the Collateral Account and the L/C Collateral
Account 8
8. Release of Amounts 8
9. Representations and Warranties 8
10. Further Assurances 10
11. As to Equipment and Inventory 11
12. Insurance 12
13. Place of Perfection; Records; Collection of Receivables 13
14. Voting Rights; Dividends; Etc. 14
15. As to the Assigned Agreements 15
16. Payments Under the Assigned Agreements 16
17. Transfers and Other Liens; Additional Shares 16
18. Collateral Agent Appointed Attorney-in-Fact 17
19. Collateral Agent May Perform 17
20. The Collateral Agent's Duties 17
21. Remedies 18
22. Indemnity and Expenses 19
23. Amendments; Waivers; Additional Grantors; Etc 20
24. Notices; Etc 20
25. Continuing Security Interest; Assignments under the Credit Agreement 21
26. Release; Termination 21
27. Security Interest Absolute 21
28. Execution in Counterparts 23
29. The Mortgages 23
30. Governing Law 23
Schedules
Schedule I - Pledged Shares and Pledged Debt
Schedule II - Assigned Agreements
Schedule III - Locations of Equipment and Inventory
Schedule IV - Chief Place of Business, Chief Executive Office and Federal
Tax Identification Number
Schedule V - Trade Names
Schedule VI - Pledged Accounts
Exhibits
Exhibit A - Form of Security Agreement Supplement
Exhibit B - Form of Pledged Account Letter
Exhibit C - Form of Consent and Agreement
SECURITY AGREEMENT
SECURITY AGREEMENT dated July 23, 1999 made by LODGIAN FINANCE
CORP., a Delaware corporation (the "Borrower"), SERVICO, INC., a Florida
corporation ("Servico"), IMPAC HOTEL GROUP, LLC, a Georgia limited liability
company ("Impac" and, together with Servico, the "Affiliate Guarantors"), the
other persons listed on the signature pages hereof and the Additional Grantors
(as defined in Section 23) (the Borrower, the Affiliate Guarantors, the persons
so listed and the Additional Grantors being, collectively, the "Grantors"), to
Morgan Stanley Senior Funding, Inc., as collateral agent (together with any
successor collateral agent appointed pursuant to Article VII of the Credit
Agreement (as hereinafter defined), the "Collateral Agent") for the Secured
Parties (as defined in the Credit Agreement).
PRELIMINARY STATEMENTS.
(1) The Borrower and the Affiliate Guarantors have entered into a
Credit Agreement dated as of July 23, 1999 (said Agreement, as it may hereafter
be amended, amended and restated, supplemented or otherwise modified from time
to time, being the "Credit Agreement") with the Lender Parties and the Agents
(each as defined therein).
(2) Pursuant to the Credit Agreement, the Grantors are entering into
this Agreement in order to grant to the Collateral Agent for the ratable benefit
of the Secured Parties a security interest in all of its personal property and
fixtures and other assets of the Grantors now owned or hereafter acquired.
(3) Each Grantor is the owner of the shares (the "Initial Pledged
Shares") of stock set forth opposite such Grantor's name on and as otherwise
described in Part I of Schedule I hereto and issued by the corporations named
therein and of the indebtedness (the "Initial Pledged Debt") set forth opposite
such Grantor's name on and as otherwise described in Part II of Schedule I
hereto and issued by the obligors named therein.
(4) The Grantors shall open a collateral securities account in the
name of the Collateral Agent and under the sole control and dominion of the
Collateral Agent and subject to the terms of this Agreement.
(5) The Borrower shall open a collateral securities account (the
"L/C Collateral Account"), in the name of the Collateral Agent and under the
sole control and dominion of the Collateral Agent and subject to the terms of
this Agreement.
(6) It is a condition precedent to the making of Advances and the
issuance of Letters of Credit by the Lender Parties under the Credit Agreement
from time to time that the Grantors shall have granted the assignment and
security interest and made the pledge and assignment contemplated by this
Agreement.
(7) Each Grantor will derive substantial direct and indirect benefit
from the transactions contemplated by the Loan Documents.
(8) Terms defined in the Credit Agreement and not otherwise defined
in this Agreement are used in this Agreement as defined in the Credit Agreement.
Further, unless otherwise defined in this Agreement or in the Credit Agreement,
terms defined in Article 8 or 9 of the Uniform Commercial Code in effect in the
State of New York ("N.Y. Uniform Commercial Code") are used in this Agreement as
such terms are defined in such Article 8 or 9.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and issue Letters of Credit under the
Credit Agreement from time to time, each Grantor hereby agrees with the
Collateral Agent for the ratable benefit of the Secured Parties as follows:
Section 1. Grant of Security. Each Grantor hereby assigns and
pledges to the Collateral Agent for the ratable benefit of the Secured Parties,
and hereby grants to the Collateral Agent for the ratable benefit of the Secured
Parties a security interest in, the following, in each case, as to each type of
property described below, whether now owned or hereafter acquired by such
Grantor, wherever located, and whether now or hereafter existing or arising
(collectively, the "Collateral"):
(a) all of such Grantor's right, title and interest in and to all
equipment in all of its forms (including, without limitation, all (i)
bureaus, bookcases, chiffonniers, chests, sofas, divans, couches, chairs,
stools, tables, desks, lamps, mirrors, rugs, carpeting, drapes, draperies,
curtains, venetian blinds, screens, paintings, hangings, sculptures,
pictures and other decorative works, beds, linens, pillows, blankets,
foodcarts, chinaware, glassware, cookware, stoves, ranges, refrigerators,
dishwashers, garbage disposals, incinerators, washers and dryers, laundry
machines, dry cleaning facilities, bars, bar fixtures, liquor and other
drink dispensers, icemakers, vacuum cleaning systems, floor cleaning,
waxing and polishing equipment, brackets, electrical signs, bulbs, cells,
cabinets, lockers, shelving, luggage carts, luggage racks, keys or other
entry systems, radios, television sets, intercom and paging equipment,
switchboards, private telephone systems, conduits, compressors, call
systems, tools, machinery, engines, dynamos, motors, boats, boilers,
spotlighting equipment, golf carts, buggies, motor vehicles, bicycles),
(ii) production, manufacturing, distribution, selling, data processing,
computer and office equipment and tools, (iii) notebooks, drawings,
diagrams, plans, manuals, computer peripherals, hardware, firmware,
software, data storage tapes, disks, diskettes and other computerized
information), and (iv) other customary hotel or similar equipment and
other tangible property of every kind and nature whatsoever and other
property of every kind and description which may be construed to be
personal property of every kind and description, whether now existing or
hereafter attached to, erected upon, situated in or upon, forming a part
of, appurtenant to, used or useful in the construction of or in connection
with, or arising from the use or enjoyment of all or any portion of the
hotels, all fixtures and all parts thereof and all accessions thereto
including, without limitation,
all docks, piers, jetties, and pontoons (any and all such equipment,
fixtures, parts and accessions being the "Equipment");
(b) all of such Grantor's right, title and interest in and to all
inventory in all of its forms, (including, but not limited to all, (i)
provisions in storerooms, refrigerators, pantries and kitchens, beverages
in wine cellars and bars, other merchandise intended for sale, fuel,
mechanical supplies, stationary and other expensed supplies and similar
items and raw materials and work in process therefor, finished goods
thereof and materials used or consumed in the manufacture, production,
preparation or shipping thereof, (ii) goods in which such Grantor has an
interest in mass or a joint or other interest or right of any kind
(including, without limitation, goods in which such Grantor has an
interest or right as consignee) and (iii) goods that are returned to or
repossessed or stopped in transit by such Grantor), and all accessions
thereto and products thereof and documents therefor (any and all such
inventory, accessions, products and documents being the "Inventory");
(c) all of such Grantor's right, title and interest in and to all
accounts, contract rights, chattel paper, instruments, deposit accounts,
general intangibles, and to the extent assignable, all licenses
(including, but not limited to, any operating licenses, alcoholic beverage
licenses or similar licenses), license agreements, contracts, management
contracts or agreements, guaranties, warranties, franchise agreements,
permits, authorities or certificates, and other obligations of any kind,
whether or not arising out of or in connection with the sale or lease of
goods or the rendering of services and whether or not earned by
performance, and all rights now or hereafter existing in and to all
security agreements, leases and other contracts securing or otherwise
relating to any such accounts, contract rights, chattel paper,
instruments, deposit accounts, general intangibles or obligations, (any
and all such accounts, contract rights, chattel paper, instruments,
deposit accounts, instruments, general intangibles and obligations, to the
extent not referred to in clause (d), (e) or (f) below, being the
"Receivables", and any and all such leases, security agreements and other
contracts being the "Related Contracts");
(d) all of such Grantor's right, title and interest in and to the
following (the "Security Collateral"):
(i) the Initial Pledged Shares and the certificates, if
any, representing the Initial Pledged Shares, and all dividends,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the Initial Pledged Shares;
(ii) the Initial Pledged Debt and the instruments, if
any, evidencing the Initial Pledged Debt, and all interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the Initial Pledged Debt;
(iii) all additional shares of stock from time to time
issued by any subsidiary of such Grantor (such shares, together with
the Initial Pledged Shares, being the "Pledged Shares"), and the
certificates, if any, representing such
additional shares, and all dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
shares;
(iv) all additional indebtedness from time to time owed to
such Grantor (such indebtedness, together with the Initial Pledged
Debt, being the "Pledged Debt") and the instruments, if any,
evidencing such indebtedness, and all interest, cash, instruments
and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such indebtedness;
(v) all other investment property (including, without
limitation, all (A) securities, whether certificated or
uncertificated, (B) security entitlements, and (C) securities
accounts) in which such Grantor has now, or acquires from time to
time hereafter, any right, title or interest in any manner, and the
certificates or instruments, if any, representing or evidencing such
investment property, and all dividends, interest, distributions,
value, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such investment property;
(e) all of such Grantor's right, title and interest in and to each
of the agreements listed on Schedule II hereto, and each Hedge Agreement
to which such Grantor is now or may hereafter become a party, in each case
as such agreements may be amended, amended and restated, supplemented or
otherwise modified from time to time (collectively, the "Assigned
Agreements"), including, without limitation, (i) all rights of such
Grantor to receive moneys due and to become due under or pursuant to the
Assigned Agreements, (ii) all rights of such Grantor to receive proceeds
of any insurance, indemnity, warranty or guaranty with respect to the
Assigned Agreements, (iii) claims of such Grantor for damages arising out
of or for breach of or default under the Assigned Agreements and (iv) the
right of such Grantor to terminate the Assigned Agreements, to perform
thereunder and to compel performance and otherwise exercise all remedies
thereunder (all such Collateral being the "Agreement Collateral");
(f) all of such Grantor's right, title and interest in and to the
following (collectively, the "Account Collateral"):
(i) the Collateral Account, all financial assets from time to
time credited to the Collateral Account (including, without
limitation, all Cash Equivalents from time to time credited to the
Collateral Account), and all dividends, interest, cash, instruments
and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such financial assets;
(ii) the L/C Collateral Account, all financial assets from
time to time credited to the L/C Collateral Account (including,
without limitation, all Cash Equivalents from time to time credited
to the L/C Collateral Account), and all dividends, interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such financial assets;
(iii) the Concentration Account (as hereinafter defined), all
funds held therein and all certificates and instruments, if any,
from time to time representing or evidencing the Concentration
Account;
(iv) all other deposit accounts of such Grantor, all funds
held therein and all certificates and instruments, if any, from time
to time representing or evidencing such deposit accounts;
(v) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time delivered to or
otherwise possessed by the Collateral Agent for or on behalf of such
Grantor, including, without limitation, those delivered or possessed
in substitution for or in addition to any or all of the then
existing Account Collateral; and
(vi) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then
existing Account Collateral; and
(g) all proceeds of any and all of the Collateral (including,
without limitation, proceeds that constitute property of the types
described in clauses (a) through (f) of this Section 1 and this clause
(g)) and, to the extent not otherwise included, all (i) payments under
insurance (whether or not the Collateral Agent is the loss payee thereof),
or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral and
(ii) cash.
Section 2. Security for Obligations. This Agreement secures, in the
case of each Grantor, the payment of all Obligations of such Grantor now or
hereafter existing under the Loan Documents, whether direct or indirect,
absolute or contingent, and including, without limitation, any amendments,
amendment and restatements, supplements, modifications, extensions,
substitutions and renewals thereof, and whether for principal, reimbursement
obligations, interest, fees, premiums, penalties, indemnifications, contract
causes of action, costs, expenses or otherwise (all such Obligations being the
"Secured Obligations"). Without limiting the generality of the foregoing, this
Agreement secures, as to each Grantor, the payment of all amounts that
constitute part of the Secured Obligations and would be owed by such Grantor to
any Secured Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving a Loan Party.
Section 3. Grantors Remain Liable. Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under the contracts and
agreements included in such Grantor's Collateral to the extent set forth therein
to perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by the Collateral Agent
of any of the rights hereunder shall not release any Grantor from any of its
duties or obligations under the contracts and agreements included in the
Collateral and (c) no Secured Party shall have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement or any other Loan Document, nor shall any Secured Party be obligated
to perform any of the obligations or duties of any Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
Section 4. Delivery and Control of Security Collateral, Account
Collateral or Agreement Collateral. (a) All certificates or instruments
representing or evidencing Security Collateral, Account Collateral or Agreement
Collateral (and, to the extent requested by the Collateral Agent, any other
Collateral) shall be delivered to and held by or on behalf of the Collateral
Agent pursuant hereto and shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Collateral Agent. The
Collateral Agent shall have the right, at any time when an Event of Default has
occurred and is continuing, upon prior notice to the Grantors, to transfer to or
to register in the name of the Collateral Agent or any of its nominees any or
all of the Security Collateral, subject only to the revocable rights specified
in Section 14(a). In addition, the Collateral Agent shall have the right at any
time to exchange certificates or instruments held by it representing or
evidencing Security Collateral for certificates or instruments of smaller or
larger denominations.
(b) With respect to any Security Collateral in which any Grantor has
any right, title or interest and that constitutes an uncertificated security,
such Grantor will cause the issuer thereof either (i) to register the Collateral
Agent as the registered owner of such security or (ii) to agree in writing with
such Grantor and the Collateral Agent that such issuer will comply with
instructions with respect to such security originated by the Collateral Agent
without further consent of such Grantor, such agreement to be in form and
substance satisfactory to the Collateral Agent, any such action to be taken by
the Collateral Agent only when an Event of Default has occurred and is
continuing.
(c) With respect to any Security Collateral in which any Grantor has
any right, title or interest and that constitutes a security entitlement, such
Grantor will cause the securities intermediary with respect to such security
entitlement either (i) to identify in its records the Collateral Agent as the
entitlement holder of such security entitlement against such securities
intermediary or (ii) to agree in writing with such Grantor and the Collateral
Agent that such securities intermediary will comply with entitlement orders
(that is, notifications communicated to such securities intermediary directing
transfer or redemption of the financial asset to which such Grantor has a
security entitlement) originated by the Collateral Agent without further consent
of such Grantor, such agreement to be in form and substance reasonably
satisfactory to the Collateral Agent (such agreement being a "Securities Account
Control Agreement"), any
such action to be taken by the Collateral Agent only when an Event of Default
has occurred and is continuing.
(d) With respect to any Security Collateral in which any Grantor has
any right, title or interest and that constitutes a securities account, such
Grantor will, comply with subsection (c) of this Section 4 with respect to all
security entitlements credited to such securities account.
Section 5. Maintaining the Pledged Accounts. So long as any Advance
or any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment under the Credit Agreement, the Borrower will maintain its cash
management concentration account (the "Concentration Account") only with a bank
that has entered into a letter agreement in substantially the form of Exhibit B
hereto or otherwise in form and substance satisfactory to the Collateral Agent
with the Borrower and the Collateral Agent (the "Pledged Account Letter").
Section 6. Maintaining the Collateral Account and the L/C Collateral
Account. So long as any Advance or any other Obligation of any Loan Party under
any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding
or any Lender shall have any Commitment under the Credit Agreement:
(a) The Borrower will maintain the Collateral Account and the L/C
Collateral Account with the Collateral Agent or another commercial bank
acceptable to the Collateral Agent that has entered into a Pledged Account
Letter (the Collateral Agent or bank with which the Collateral Account and
the L/C Collateral Account are maintained being the "Collateral Bank").
(b) It shall be a term and condition of each of the Collateral
Account and the L/C Collateral Account, notwithstanding any term or
condition to the contrary in any other agreement relating to the
Collateral Account or the L/C Collateral Account, as the case may be, and
except as otherwise provided by the provisions of Section 8 and Section
21, that no amount (including interest on Cash Equivalents credited
thereto) will be paid or released to or for the account of, or withdrawn
by or for the account of, the Borrower or any other Person from the
Collateral Account or the L/C Collateral Account, as the case may be.
Section 7. Investing of Amounts in the Collateral Account and the
L/C Collateral Account. The Collateral Agent will, subject to the provisions of
Section 8 and Section 21, from time to time direct the Collateral Bank to (a)
invest amounts received with respect to the Collateral Account and the L/C
Collateral Account in such Cash Equivalents credited to the Collateral Account
and the L/C Collateral Account, respectively, as the Borrower may select and (b)
invest interest paid on the Cash Equivalents referred to in clause (a) above,
and reinvest other proceeds of any such Cash Equivalents that may mature or be
sold, in each case in such Cash Equivalents credited to the Collateral Account
and the L/C Collateral Account, respectively, as the Borrower may select.
Interest and proceeds that are not invested or reinvested in Cash
Equivalents as provided above shall be deposited and held in a deposit account
with the Collateral Bank in the name of the Collateral Agent and under the sole
control and dominion of the Collateral Agent, such deposit account to be deemed
to constitute part of the Collateral Account or the L/C Collateral Account, as
the case may be. In addition, the Collateral Agent shall have the right at any
time to direct the Collateral Bank to exchange such Cash Equivalents for similar
Cash Equivalents of smaller or larger determinations, or for other Cash
Equivalents, credited to the Collateral Account or the L/C Collateral Account,
as the case may be.
Section 8. Release of Amounts. So long as no Event of Default shall
have occurred and be continuing, the Collateral Agent will direct the Collateral
Bank to pay and release to the Borrower or at its order or, at the request of
the Borrower, to the Administrative Agent to be applied to the Obligations of
the Borrower under the Loan Documents, such amount, if any, as is then on
deposit in the Collateral Account or the L/C Collateral Account, as the case may
be, provided, however, that with respect to amounts deposited in the L/C
Collateral Account pursuant to Section 2.06(b), 5.01(j) or 6.02 of the Credit
Agreement, such amounts will be released only to the extent permitted by the
terms of the Credit Agreement.
Section 9. Representations and Warranties. Each Grantor represents
and warrants as follows:
(a) All of the Equipment and Inventory of such Grantor are located
at the places specified therefor in Schedule III hereto, as such Schedule
III may be amended, amended and restated, supplemented or otherwise
modified from time to time pursuant to Section 11(a). The chief place of
business and chief executive office of such Grantor are located at the
address specified therefor in Schedule IV hereto, as such Schedule IV may
be amended, amended and restated, supplemented or otherwise modified from
time to time pursuant to Section 13(a). Such Grantor's federal tax
identification number is set forth opposite such Grantor's name in IV
hereto. All Security Collateral consisting of certificated securities and
instruments have been delivered to the Collateral Agent. None of the
Receivables or Agreement Collateral is evidenced by a promissory note or
other instrument that has not been delivered to the Collateral Agent.
(b) Such Grantor is the legal and beneficial owner of the Collateral
of such Grantor free and clear of any Lien, claim, option or right of
others, except for the security interest created under this Agreement or
Liens permitted by the Credit Agreement. Such Grantor has the trade names
listed on Schedule V hereto.
(c) Such Grantor has exclusive possession and control of
substantially all of the Equipment and Inventory owned by it.
(d) The Pledged Shares pledged by such Grantor hereunder have been
duly authorized and validly issued and are fully paid and non-assessable.
The Pledged Debt pledged by such Grantor hereunder has been duly
authorized, authenticated or issued and delivered, to the best knowledge
of the Grantor is the legal, valid and binding obligation
of the issuers thereof, is evidenced by one or more promissary notes
(which notes have been delivered to the Collateral Agent) and is not in
default.
(e) The Initial Pledged Shares constitute the percentage of the
issued and outstanding shares of stock of the issuers thereof indicated on
Schedule I hereto as of the date hereof. The Initial Pledged Debt
constitutes all of the outstanding indebtedness owed to such Grantor by
the issuers thereof and is outstanding, as of the date hereof, in the
principal amount indicated on Schedule I hereto as of the date hereof.
(f) The Assigned Agreements to which such Grantor is a party, true
and complete copies of which (other than the Hedge Agreements) have been
furnished to each Secured Party, have been duly authorized, executed and
delivered by all parties thereto, have not been amended, amended and
restated, supplemented or otherwise modified, are in full force and effect
and are binding upon and enforceable against all parties thereto in
accordance with their terms. There exists no default under any Assigned
Agreement to which such Grantor is a party by any party thereto. Each
party to the Assigned Agreements listed on Schedule II hereto to which
such Grantor is a party other than the Grantors has executed and delivered
to such Grantor a consent, in substantially the form of Exhibit C hereto
or otherwise in form and substance satisfactory to the Collateral Agent,
to the assignment of the Agreement Collateral to the Collateral Agent
pursuant to this Agreement.
(g) As of the date hereof, such Grantor has no deposit accounts
other than the deposit accounts listed on Schedule VI hereto. In
accordance with its normal business practice, each Grantor deposits or
causes to be deposited all payments received by it to a deposit account,
amounts deposited to which are transferred to the concentration account
(the "Concentration Account") in accordance with the Borrower's normal
business practice.
(h) All filings and other actions necessary or desirable to perfect
and protect the security interest in the Collateral created under this
Agreement have been duly made or taken, and this Agreement creates in
favor of the Collateral Agent for the benefit of the Secured Parties a
valid and, together with such filings and other actions, perfected first
priority security interest in the Collateral of such Grantor, securing the
payment of the Secured Obligations.
(i) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the grant by such Grantor of the
assignment, pledge and security interest granted hereunder or for the
execution, delivery or performance of this Agreement by such Grantor, (ii)
the perfection or maintenance of the assignment, pledge and security
interest created hereunder (including the first priority nature of such
assignment, pledge or security interest), except for the filing of
financing and continuation statements under the Uniform Commercial Code,
which financing statements have been duly filed and are in full force and
effect, and the actions described in Section 4 with respect to Security
Collateral, which actions have been taken and are in full force and
effect, or (iii) for the exercise by the Collateral Agent of its voting or
other rights provided for in this Agreement or the remedies in respect of
the Collateral pursuant to this Agreement, except as may be required in
connection with the disposition of any portion of the Security Collateral
by laws affecting the offering and sale of securities generally.
Section 10. Further Assurances. (a) Each Grantor agrees that from
time to time, at the expense of such Grantor, such Grantor will promptly execute
and deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that the Collateral Agent may request, in
order to perfect and protect any pledge, assignment or security interest granted
or purported to be granted hereby or to enable the Collateral Agent to exercise
and enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, each Grantor will promptly:
(i) at the request of the Collateral Agent, mark conspicuously each document
included in the Inventory, each chattel paper included in the Receivables, each
Related Contract, each Assigned Agreement and each of its records pertaining to
the Collateral with a legend, in form and substance satisfactory to the
Collateral Agent, indicating that such document, chattel paper, Related
Contract, Assigned Agreement or Collateral is subject to the security interest
granted hereby; (ii) if any Collateral shall be evidenced by a promissory note
or other instrument or chattel paper in repsect of an amount of $100,000 or
more, deliver and pledge to the Collateral Agent hereunder such note or
instrument or chattel paper duly indorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance satisfactory to
the Collateral Agent; (iii) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Collateral Agent may request, in order to
perfect and preserve the security interest granted or purported to be granted
hereunder ; (iv) deliver and pledge to the Collateral Agent for benefit of the
Secured Parties certificates representing the Pledged Shares accompanied by
undated stock powers executed in blank; and (v) deliver to the Collateral Agent
evidence that all other action that the Collateral Agent may deem reasonably
necessary or desirable in order to perfect and protect the security interest
created under this Agreement has been taken.
(b) Each Grantor hereby authorizes the Collateral Agent to file one
or more financing or continuation statements, and amendments thereto, relating
to all or any part of the Collateral without the signature of such Grantor where
permitted by law. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(c) Each Grantor will furnish to the Collateral Agent from time to
time statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Collateral Agent
may reasonably request, all in reasonable detail.
Section 11. As to Equipment and Inventory. (a) Each Grantor will
keep the Equipment and Inventory of such Grantor (other than Inventory sold in
the ordinary course of business) at the places therefor specified in Section
9(a) or, upon 30 days' prior written notice to
the Collateral Agent, at such other places in a jurisdiction where all action
required by Section 10 shall have been taken with respect to such Equipment and
Inventory (and, upon the taking of such action in such jurisdiction, Schedule
III hereto shall be automatically amended to include such other places).
(b) Each Grantor will cause the Equipment of such Grantor to be
maintained and preserved in the same condition, repair and working order as when
new, ordinary wear and tear excepted, and in accordance with any manufacturer's
manual, and will forthwith, or in the case of any loss or damage to any of such
Equipment as soon as practicable after the occurrence thereof, make or cause to
be made all repairs, replacements and other improvements in connection therewith
that are necessary or desirable to such end. Each Grantor will promptly furnish
to the Collateral Agent a statement respecting any loss or damage exceeding
$500,000 to any of the Equipment or Inventory of such Grantor.
(c) Each Grantor will pay promptly when due all property and other
taxes, assessments and governmental charges or levies imposed upon, and all
claims (including, without limitation, claims for labor, materials and supplies)
against, the Equipment and Inventory of such Grantor. In producing the
Inventory, each Grantor will comply in all material respects with all
requirements of applicable law, including, without limitation, the Fair Labor
Standards Act.
Section 12. Insurance. (a) Each Grantor will, at its own expense,
maintain insurance with respect to the Equipment and Inventory of such Grantor
in such amounts, against such risks, in such form and with such insurers, as
shall be in accordance with industry practice and reasonably satisfactory to the
Collateral Agent from time to time. Each policy for liability insurance shall
provide for all losses to be paid on behalf of the Collateral Agent and such
Grantor as their interests may appear, and each policy for property damage
insurance shall provide for all losses (except for losses of less than $500,000
per occurrence) to be paid directly to the Collateral Agent. Each such policy
shall in addition, to the extent reasonably available (i) name such Grantor and
the Collateral Agent as insured parties thereunder (without any representation
or warranty by or obligation upon the Collateral Agent) as their interests may
appear, (ii) contain the agreement by the insurer that any loss thereunder in
excess of $500,000 shall be payable to the Collateral Agent notwithstanding any
action, inaction or breach of representation or warranty by such Grantor, (iii)
provide that there shall be no recourse against the Collateral Agent for payment
of premiums or other amounts with respect thereto and (iv) provide that at least
10 days' prior written notice of cancellation or of lapse shall be given to the
Collateral Agent by the insurer. Each Grantor will, if so requested by the
Collateral Agent, deliver to the Collateral Agent original or duplicate policies
of such insurance and, as requested by the Collateral Agent (but not more than
once a year), a report of a reputable insurance broker with respect to such
insurance. Further, each Grantor will, at the request of the Collateral Agent,
duly execute and deliver instruments of assignment of such insurance policies to
comply with the requirements of Section 10 and cause the insurers to acknowledge
notice of such assignment.
(b) Reimbursement under any liability insurance maintained by any
Grantor pursuant to this Section 12 may be paid directly to the Person who shall
have incurred liability
covered by such insurance. In case of any loss involving damage to Equipment or
Inventory when subsection (c) of this Section 12 is not applicable, the
applicable Grantor will make or cause to be made the necessary repairs to or
replacements of such Equipment or Inventory, and any proceeds of insurance
properly received by or released to such Grantor shall be used by such Grantor,
except as otherwise required hereunder or by the Credit Agreement, to pay or as
reimbursement for the costs of such repairs or replacements.
(c) So long as no Event of Default shall have occurred and be
continuing, all insurance payments received by the Collateral Agent in
connection with any loss, damage or destruction of any Inventory or Equipment
will be released by the Collateral Agent to the applicable Grantor for the
repair, replacement or restoration thereof, subject to such terms and conditions
with respect to the release thereof as the Collateral Agent may reasonably
require.
Section 13. Place of Perfection; Records; Collection of Receivables.
(a) Each Grantor will keep its chief place of business and chief executive
office at the location therefor specified in Section 9(a) or, upon 30 days'
prior written notice to the Collateral Agent, at such other location in a
jurisdiction where all actions required by Section 10 shall have been taken with
respect to the Collateral (and, upon the taking of such action in such
jurisdiction, Schedule IV hereto shall be automatically amended to include such
other location). Each Grantor will hold and preserve its records relating to the
Collateral, the Assigned Agreements, the Related Contracts and chattel paper and
will permit representatives of the Collateral Agent at any time during normal
business hours to inspect and make abstracts from such records and other
documents. No Grantor will change or add any securities intermediary that
maintains any securities account in which any of the Collateral is credited or
carried, or change or add any such securities account, in each case without
first complying with the provisions of Section 4 in order to perfect the
security interest granted hereunder in such Collateral.
(b) Except as otherwise provided in this subsection (b), each
Grantor will continue to collect, at its own expense, all amounts due or to
become due such Grantor under the Receivables and the Related Contracts. In
connection with such collections, such Grantor may take (and, at the Collateral
Agent's direction, will take) such action as such Grantor or the Collateral
Agent may deem necessary or advisable to enforce collection of the Receivables
and the Related Contracts; provided, however, that the Collateral Agent shall
have the right at any time, upon the occurrence and during the continuance of an
Event of Default and upon written notice to such Grantor of its intention to do
so, to notify the Obligors under any Receivables or Related Contracts of the
assignment of such Receivables or Related Contracts to the Collateral Agent and
to direct such Obligors to make payment of all amounts due or to become due to
such Grantor thereunder directly to the Collateral Agent and, upon such
notification and at the expense of such Grantor, to enforce collection of any
such Receivables or Related Contracts, and to adjust, settle or compromise the
amount or payment thereof, in the same manner and to the same extent as such
Grantor might have done. After receipt by any Grantor of the notice from the
Collateral Agent referred to in the proviso to the preceding sentence, (i) all
amounts and proceeds (including instruments) received by such Grantor in respect
of the Receivables and the Related Contracts shall be received in trust for the
benefit of the Collateral Agent hereunder, shall be segregated from other funds
of such Grantor and shall be forthwith paid over to the Collateral
Agent in the same form as so received (with any necessary indorsement) to be
deposited in the Collateral Account and either (A) released to such Grantor on
the terms set forth in Section 8 so long as no Event of Default shall have
occurred and be continuing or (B) if any Event of Default shall have occurred
and be continuing, applied as provided in Section 21(b) and (ii) such Grantor
will not adjust, settle or compromise the amount or payment of any Receivable,
release wholly or partly any Obligor thereof, or allow any credit or discount
thereon. No Grantor will permit or consent to the subordination of its right to
payment under any of the Receivables or the Related Contracts to any other
indebtedness or obligations of the Obligor thereof.
Section 14. Voting Rights; Dividends; Etc. (a) So long as no Event
of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Security Collateral of such
Grantor or any part thereof for any purpose; provided however, that such
Grantor will not exercise or refrain from exercising any such right if
such action would have a material adverse effect on the value of the
Security Collateral or any part thereof.
(ii) Each Grantor shall be entitled to receive and retain any and
all dividends, interest and other distributions paid in respect of the
Security Collateral of such Grantor if and to the extent that the payment
thereof is not otherwise prohibited by the terms of the Loan Documents;
provided, however, that any and all
(A) dividends, interest and other distributions paid or
payable other than in cash in respect of, and instruments and other
property received, receivable or otherwise distributed in respect
of, or in exchange for, any Security Collateral,
(B) dividends and other distributions paid or payable in
cash in respect of any Security Collateral in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-surplus and
(C) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in exchange for,
any Security Collateral
shall be, and shall be forthwith delivered to the Collateral Agent to hold
as, Security Collateral and shall, if received by such Grantor, be
received in trust for the benefit of the Collateral Agent, be segregated
from the other property or funds of such Grantor and be forthwith
delivered to the Collateral Agent as Security Collateral in the same form
as so received (with any necessary indorsement).
(iii) The Collateral Agent will execute and deliver (or cause to be
executed and delivered) to each Grantor all such proxies and other
instruments as such Grantor may reasonably request for the purpose of
enabling such Grantor to exercise the voting and
other rights that it is entitled to exercise pursuant to paragraph (i)
above and to receive the dividends or interest payments that it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default]:
(i) All rights of each Grantor (x) to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise
be entitled to exercise pursuant to Section 14(a)(i) shall, upon notice to
such Grantor by the Collateral Agent, cease and (y) to receive the
dividends, interest and other distributions that it would otherwise be
authorized to receive and retain pursuant to Section 14(a)(ii) shall
automatically cease, and all such rights shall thereupon become vested in
the Collateral Agent, which shall thereupon have the sole right to
exercise or refrain from exercising such voting and other consensual
rights and to receive and hold as Security Collateral such dividends,
interest and other distributions.
(ii) All dividends, interest and other distributions that are
received by any Grantor contrary to the provisions of paragraph (i) of
this Section 14(b) shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other funds of such Grantor and
shall be forthwith paid over to the Collateral Agent as Security
Collateral in the same form as so received (with any necessary
indorsement).
(iii) The Collateral Agent shall be authorized to send to each
Securities Intermediary as defined in and under any Control Agreement a
Notice of Exclusive Control as defined in and under such Control
Agreement.
Section 15. As to the Assigned Agreements. (a) Each Grantor will at
its expense:
(i) perform and observe all terms and provisions of the Assigned
Agreements to be performed or observed by it, maintain the Assigned
Agreements to which it is a party in full force and effect, enforce the
Assigned Agreements to which it is a party in accordance with the terms
thereof and take all such action to such end as may be requested from time
to time by the Collateral Agent; and
(ii) furnish to the Collateral Agent promptly upon receipt thereof
copies of all notices, requests and other documents received by such
Grantor under or pursuant to the Assigned Agreements to which it is a
party, and from time to time (A) furnish to the Collateral Agent such
information and reports regarding the Assigned Agreements and such other
Collateral of such Grantor as the Collateral Agent may reasonably request
and (B) upon request of the Collateral Agent make to each other party to
any Assigned Agreement to which it is a party such demands and requests
for information and reports or for action as such Grantor is entitled to
make thereunder.
(b) Each Grantor agrees that it will not, except to the extent
otherwise permitted under the Credit Agreement:
(i) cancel or terminate any Assigned Agreement to which it is a
party or consent to or accept any cancellation or termination thereof;
(ii) amend, amend and restate, supplement or otherwise modify any
such Assigned Agreement or give any consent, waiver or approval
thereunder;
(iii) waive any default under or breach of any such Assigned
Agreement;
(iv) consent to or permit or accept any prepayment of amounts to
become due under or in connection with any Assigned Agreement, except as
expressly provided therein; or
(v) take any other action in connection with any such Assigned
Agreement that would impair the value of the interests or rights of such
Grantor thereunder or that would impair the interests or rights of any
Secured Party.
(c) Each Grantor hereby consents on its behalf and on behalf of its
Subsidiaries to the assignment and pledge to the Collateral Agent for benefit of
the Secured Parties of each Assigned Agreement to which it is a party by any
other Grantor hereunder.
Section 16. Payments Under the Assigned Agreements. (a) Each Grantor
agrees, and has effectively so instructed each other party to each Assigned
Agreement to which it is a party, that all payments due or to become due under
or in connection with such Assigned Agreement will be made directly to the
Collateral Account.
(b) All moneys received or collected pursuant to subsection (a)
above shall be (i) released to the applicable Grantor on the terms set forth in
Section 8 so long as no Event of Default shall have occurred and be continuing
or (ii) if any Event of Default shall have occurred and be continuing, applied
as provided in Section 21(b).
Section 17. Transfers and Other Liens; Additional Shares. (a) Each
Grantor agrees that it will not (i) sell, assign or otherwise dispose of, or
grant any option with respect to, any of the Collateral, other than sales,
assignments and other dispositions of Collateral, and options relating to
Collateral, permitted under the terms of the Credit Agreement, or (ii) create or
suffer to exist any Lien upon or with respect to any of the Collateral of such
Grantor except for the pledge, assignment and security interest created under
this Agreement.
(b) Each Grantor agrees that it will (i) cause each issuer of the
Pledged Shares pledged by such Grantor not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to such Grantor, and (ii) pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all additional shares
of stock or other securities.
Section 18. Collateral Agent Appointed Attorney-in-Fact. Each
Grantor hereby irrevocably appoints the Collateral Agent such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time in the Collateral
Agent's discretion, to take any action and to execute any instrument that the
Collateral Agent may deem necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to the
Collateral Agent pursuant to Section 12,
(b) to ask for, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral,
(c) to receive, indorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) or (b) above,
and
(d) to file any claims or take any action or institute any
proceedings that the Collateral Agent may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce compliance
with the terms and conditions of any Assigned Agreement or the rights of
the Collateral Agent with respect to any of the Collateral.
Section 19. Collateral Agent May Perform. If any Grantor fails to
perform any agreement contained herein, the Collateral Agent may, but without
any obligation to do so and without notice, itself perform, or cause performance
of, such agreement, and the expenses of the Collateral Agent incurred in
connection therewith shall be payable by such Grantor under Section 22(b).
Section 20. The Collateral Agent's Duties. The powers conferred on
the Collateral Agent hereunder are solely to protect the Secured Parties'
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Collateral
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not any Secured Party has
or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any Collateral in
its possession if such Collateral is accorded treatment substantially equal to
that which it accords its own property. Anything contained herein to the
contrary notwithstanding, the Collateral Agent may from time to time when the
Collateral Agent deems it to be necessary appoint one or more subagents (each a
"Subagent") for the Collateral Agent hereunder with respect to all or any part
of the Collateral. In the event that the Collateral Agent so appoints any
Subagent with respect to any Collateral, (1) the assignment and pledge of such
Collateral and the security interest granted in such Collateral
by each Grantor hereunder shall be deemed for purposes of this Security
Agreement to have been made to such Subagent for the ratable benefit of the
Secured Parties, as security for the Secured Obligations of such Grantor, (2)
such Subagent shall automatically be vested with all rights, powers, privileges,
interests and remedies of the Collateral Agent hereunder with respect to such
Collateral, and (3) the term "Collateral Agent," when used herein in relation to
any rights, powers, privileges, interests and remedies of the Collateral Agent
with respect to such Collateral, shall include such Subagent; provided, however,
that no such Subagent shall be authorized to take any action with respect to any
such Collateral unless and except to the extent expressly authorized in writing
by the Collateral Agent.
Section 21. Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Collateral Agent may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party upon
default under the N.Y. Uniform Commercial Code (whether or not the N.Y.
Uniform Commercial Code applies to the affected Collateral) and also may:
(i) require each Grantor to, and each Grantor hereby agrees that it will
at its expense and upon request of the Collateral Agent forthwith,
assemble all or part of the Collateral as directed by the Collateral Agent
and make it available to the Collateral Agent at a place and time to be
designated by the Collateral Agent that is reasonably convenient to both
parties; (ii) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private
sale, at any of the Collateral Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Collateral
Agent may deem commercially reasonable; (iii) occupy any premises owned or
leased by any of the Grantors where the Collateral or any part thereof is
assembled or located for a reasonable period in order to effectuate its
rights and remedies hereunder or under law, without obligation to such
Grantor in respect of such occupation; and (iv) exercise any and all
rights and remedies of any of the Grantors under or in connection with the
Assigned Agreements, the Receivables and the Related Contracts or
otherwise in respect of the Collateral, including, without limitation, any
and all rights of such Grantor to demand or otherwise require payment of
any amount under, or performance of any provision of, the Assigned
Agreements, the Receivables and the Related Contracts. Each Grantor agrees
that, to the extent notice of sale shall be required by law, at least ten
days' notice to such Grantor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. The Collateral Agent shall not be obligated to
make any sale of Collateral regardless of notice of sale having been
given. The Collateral Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to
which it was so adjourned.
(b) Any cash held by or on behalf of the Collateral Agent and all
cash proceeds received by or on behalf of the Collateral Agent in respect
of any sale of, collection from, or other realization upon all or any part
of the Collateral may, in the
discretion of the Collateral Agent, be held by the Collateral Agent as
collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Collateral Agent pursuant to Section
22) in whole or in part by the Collateral Agent for the ratable benefit of
the Secured Parties against, all or any part of the Secured Obligations in
such order as the Collateral Agent shall elect or as otherwise permitted
or required by the Credit Agreement. Any surplus of such cash or cash
proceeds held by or on the behalf of the Collateral Agent and remaining
after payment in full of all the Secured Obligations shall be paid over to
the applicable Grantor or to whomsoever may be lawfully entitled to
receive such surplus.
(c) All payments received by any Grantor under or in connection with
any Assigned Agreement or otherwise in respect of the Collateral shall be
received in trust for the benefit of the Collateral Agent, shall be
segregated from other funds of such Grantor and shall be forthwith paid
over to the Collateral Agent in the same form as so received (with any
necessary indorsement).
(d) The Collateral Agent may, without notice to any Grantor except
as required by law and at any time or from time to time, charge, set-off
and otherwise apply all or any part of the Secured Obligations against any
funds held in any deposit account that constitutes part of, or is
otherwise related to, the Collateral Account or the L/C Collateral
Account.
Section 22. Indemnity and Expenses. (a) Each Grantor agrees to
indemnify, defend and save and hold harmless each Secured Party and each of
their Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct.
(b) Each Grantor will upon demand pay to the Collateral Agent the
amount of any and all reasonable expenses, including, without limitation, the
reasonable fees and expenses of its counsel and of any experts and agents, that
the Collateral Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from or other realization upon, any of the Collateral of such
Grantor, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent or the other Secured Parties hereunder or (iv) the failure by
such Grantor to perform or observe any of the provisions hereof.
Section 23. Amendments; Waivers; Additional Grantors; Etc. (a) No
amendment or waiver of any provision of this Agreement, and no consent to any
departure by any Grantor herefrom, shall in any event be effective unless the
same shall be in writing and signed
by the Collateral Agent, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. No
failure on the part of the Collateral Agent or any other Secured Party to
exercise, and no delay in exercising any right hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right.
(b) Upon the execution and delivery by any Person of a security
agreement supplement in substantially the form of Exhibit A hereto (each a
"Security Agreement Supplement"), (i) such Person shall be referred to as an
"Additional Grantor" and shall be and become a Grantor and each reference in
this Agreement and the other Loan Documents to "Grantor" shall also mean and be
a reference to such Additional Grantor, and (ii) the annexes attached to each
Security Agreement Supplement shall be incorporated into and become a part of
and supplement Schedules I, II, III, IV, V, and VI hereto, and the Collateral
Agent may attach such annexes as supplements to such Schedules; and each
reference to such Schedules shall mean and be a reference to such Schedules as
supplemented pursuant hereto.
Section 24. Notices; Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopier or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to, in the case of the Borrower or the Collateral Agent, addressed to it at its
address specified in the Credit Agreement and, in the case of each Grantor other
than the Borrower, addressed to it at its address set forth opposite such
Grantor's name on Schedule III or on the signature page to the Security
Agreement Supplement pursuant to which it became a party hereto; or, as to any
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and other communications shall,
when mailed, telegraphed, telecopied or telexed, be effective when deposited in
the mails, delivered to the telegraph company, telecopied or confirmed by telex
answerback, respectively, addressed as aforesaid; except that notices and other
communications to the Collateral Agent shall not be effective until received by
the Collateral Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or of any Security
Agreement Supplement or Schedule hereto shall be effective as delivery of an
original executed counterpart thereof.
Section 25. Continuing Security Interest; Assignments under the
Credit Agreement. This Agreement shall create a continuing security interest in
the Collateral and shall (a) remain in full force and effect until the latest of
(i) the payment in full in cash of the Secured Obligations, (ii) the Termination
Date and (iii) the termination or expiration of all Secured Hedge Agreements,
(b) be binding upon each Grantor, its successors and assigns and (c) inure,
together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the Secured Parties and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any Lender
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Advances owing to it and the Note or Notes,
if any, held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
Party herein or otherwise, in each case as provided in Section 9.07 of the
Credit Agreement.
Section 26. Release; Termination. (a) Upon any sale, lease, transfer
or other disposition of any item of Collateral of any Grantor in accordance with
the terms of the Loan Documents (other than sales of Inventory in the ordinary
course of business), the Collateral Agent will, at such Grantor's expense,
execute and deliver to such Grantor such documents as such Grantor shall
reasonably request to evidence the release of such item of Collateral from the
assignment and security interest granted hereby; provided, however, that (i) at
the time of such request and such release no Event of Default shall have
occurred and be continuing, (ii) such Grantor shall have delivered to the
Collateral Agent, at least five Business Days prior to the date of the proposed
release, a written request for release describing the item of Collateral and the
terms of the sale, lease, transfer or other disposition in reasonable detail,
including, without limitation, the price thereof and any expenses in connection
therewith, together with a form of release for execution by the Collateral Agent
and a certificate of such Grantor to the effect that the transaction is in
compliance with the Loan Documents and as to such other matters as the
Collateral Agent may request and (iii) the proceeds of any such sale, lease,
transfer or other disposition required to be applied, or any payment to be made
in connection therewith, in accordance with Section 2.06 of the Credit Agreement
shall, to the extent so required, be paid or made to, or in accordance with the
instructions of, the Collateral Agent when and as required under Section 2.06 of
the Credit Agreement.
(b) Upon the latest of (i) the payment in full in cash of the
Secured Obligations and (ii) the Termination Date, the pledge, assignment and
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the applicable Grantor. Upon any such termination,
the Collateral Agent will, at the applicable Grantor's expense, execute and
deliver to such Grantor such documents as such Grantor shall reasonably request
to evidence such termination.
Section 27. Security Interest Absolute. The obligations of each
Grantor under this Agreement are independent of the Secured Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Grantor to enforce this Agreement, irrespective of whether any
action is brought against such Grantor or any other Loan Party or whether such
Grantor or any other Loan Party is joined in any such action or actions. All
rights of the Collateral Agent and the other Secured Parties and the pledge,
assignment and security interest hereunder, and all obligations of each Grantor
hereunder, shall be irrevocable, absolute and unconditional irrespective of, and
each Grantor hereby irrevocably waives (to the maximum extent permitted by
applicable law) any defenses it may now have or may hereafter acquire in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents or any other amendment or waiver of or
any consent to any departure from any Loan Document, including, without
limitation, any increase in the Secured Obligations resulting from the
extension of additional credit to any Loan Party or any of its
Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment or
waiver of or consent to departure from any guaranty, for all or any of the
Secured Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Secured Obligations, or any
manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Secured Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party
any information relating to the business, condition (financial or
otherwise), operations, performance, assets, nature of assets, liabilities
or prospects of any other Loan Party now or hereafter known to such
Secured Party (each Grantor waiving any duty on the part of the Secured
Parties to disclose such information);
(g) the failure of any other Person to execute this Agreement or any
other Collateral Document, guaranty or agreement or the release or
reduction of liability of any Grantor or other grantor or surety with
respect to the Secured Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Secured Party that might otherwise constitute a
defense available to, or a discharge of, such Grantor or any other Grantor
or a third party grantor of a security interest.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Secured Obligations is rescinded or
must otherwise be returned by any Secured Party or by any other Person upon the
insolvency, bankruptcy or reorganization of any Loan Party or otherwise, all as
though such payment had not been made.
Section 28. Execution in Counterparts. This Agreement may be
executed in any number of 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. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
Section 29. The Mortgages. In the event that any of the Collateral
hereunder is also subject to a valid and enforceable Lien under the terms of any
Mortgage and the terms of such Mortgage are inconsistent with the terms of this
Agreement, then with respect to such
Collateral, the terms of such Mortgage shall be controlling in the case of
fixtures and real estate leases, letting and licenses of, and contracts and
agreements relating to the lease of, real property, and the terms of this
Agreement shall be controlling in the case of all other Collateral.
Section 30. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
LODGIAN FINANCING CORP.
By /s/ Robert M. Flanders
-------------------------------------
Title:
LODGIAN, INC.
By /s/ Robert M. Flanders
----------------------------
Title:
SERVICO, INC.
By /s/ Robert M. Flanders
----------------------------
Title:
IMPAC HOTEL GROUP, LLC
By /s/ Robert M. Flanders
----------------------------
Title:
SHEFFIELD MOTEL ENTERPRISES,
INC.
DOTHAN HOSPITALITY 3053, INC.
DOTHAN HOSPITALITY 3071, INC.
GADSDEN HOSPITALITY, INC.
LODGIAN ANAHEIM INC.
LODGIAN ONTARIO INC.
SERVICO PENSACOLA, INC.
SERVICO PENSACOLA 7200, INC.
SERVICO PENSACOLA 7330, INC.
SERVICO FT. PIERCE, INC.
AMI OPERATING PARTNERS, L.P.
SERVICO CENTRE ASSOCIATES, LTD.
SERVICO WEST PALM BEACH, INC.
SERVICO WINTER HAVEN, INC.
ALBANY HOTEL, INC.
SERVICO NORTHWOODS, INC.
BRUNSWICK MOTEL ENTERPRISES,
INC.
LITTLE ROCK LODGING ASSOCIATES
I, L.P.
ATLANTA HILLSBORO LODGING, LLC
LODGIAN RICHMOND, L.L.C.
SERVICO ROLLING MEADOWS, INC.
SERVICO CEDAR RAPIDS, INC.
SERVICO METAIRIE, INC.
SERVICO COLUMBIA, INC.
SERVICO COLESVILLE, INC.
SERVICO MARYLAND, INC.
NH MOTEL ENTERPRISES, INC.
MINNEAPOLIS MOTEL ENTERPRISES,
INC.
SERVICO ROSEVILLE, INC.
LODGIAN MOUNT LAUREL, INC.
SERVICO JAMESTOWN, INC.
SERVICO NEW YORK, INC.
SERVICO NIAGARA FALLS, INC.
SERVICO GRAND ISLAND, INC.
FAYETTEVILLE MOTEL
ENTERPRISES, INC.
APICO INNS OF GREEN TREE, INC.
APICO HILLS, INC.
SERVICO HILTON HEAD, INC.
SERVICO AUSTIN, INC.
SERVICO MARKET CENTER, INC.
SERVICO HOUSTON, INC.
By: /s/ Robert M. Flanders
----------------------------
Title:
Schedule I to the
Security Agreement
PLEDGED SHARES AND PLEDGED DEBT
See Attached.
Schedule 1 to Security Agreement
PLEDGED SHARES AND PLEDGED DEBT
PART I
- ----------------------------------------------------------------------------------------------------------------------------
Grantor Name of Issuer State of Class of Par Shares
Organization Stock Value Authorized
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SHEFFIELD MOTEL ENTERPRISES, INC. Alabama Common None 50
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. DOTHAN HOSPITALITY 3053, INC. Alabama Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. DOTHAN HOSPITALITY 3071, INC. Alabama Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. GADSDEN HOSPITALITY, INC. Alabama Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN ANAHEIM INC. California Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN ONTARIO INC. California Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. AMIOP ACQUISITION CORP., as general Delaware Common $0.01 1,000
partner of AMI Operating Partners,
L.P., a Delaware limited partnership.
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. AMI Operating Partners, L.P. Delaware
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO PENSACOLA, INC. Delaware Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO PENSACOLA 7200, INC. Delaware Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO PENSACOLA 7330, INC. Delaware Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO FT. PIERCE, INC. Delaware Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. PALM BEACH MOTEL ENTERPRISES, INC. Florida Common None 60
as general partner of Servico Centre
Associates, Ltd., a Florida limited
partnership.
- ----------------------------------------------------------------------------------------------------------------------------
SERVICO CENTRE ASSOCIATES, LTD. Florida
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO WEST PALM BEACH, INC. Florida Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO WINTER HAVEN, INC. Florida Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. ALBANY HOTEL, INC. Florida Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO NORTHWOODS, INC. Florida Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO WINDSOR, INC. Florida Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. BRUNSWICK MOTEL ENTERPRISES, INC. Georgia Common None 200
- ----------------------------------------------------------------------------------------------------------------------------
IMPAC HOTEL GROUP, LLC Georgia
- ----------------------------------------------------------------------------------------------------------------------------
IMPAC HOTELS I, LLC Georgia
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. IMPAC SPE #3, Inc., as sole general Georgia Common $0.01 100
partner of Little Rock Lodging
Associates I, L.P., a Georgia limited
partnership.
- ----------------------------------------------------------------------------------------------------------------------------
LITTLE ROCK LODGING ASSOCIATES I, L.P. Georgia
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN ATLANTA HILLSBORO Lodging, L.L.C. Georgia
- ----------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Grantor Name of Issuer Stock Certificate Number % of
Number of Shares Outstanding
Shares
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SHEFFIELD MOTEL ENTERPRISES, INC. Certificate No. 4 50 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. DOTHAN HOSPITALITY 3053, INC. Certificate No. 3 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. DOTHAN HOSPITALITY 3071, INC. Certificate No. 3 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. GADSDEN HOSPITALITY, INC. Certificate No. 3 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN ANAHEIM INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN ONTARIO INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. AMIOP ACQUISITION CORP., as general Certificate No. 3 1,000 100%
partner of AMI Operating Partners,
L.P., a Delaware limited partnership.
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. AMI Operating Partners, L.P.
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO PENSACOLA, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO PENSACOLA 7200, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO PENSACOLA 7330, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO FT. PIERCE, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. PALM BEACH MOTEL ENTERPRISES, INC. Certificate No. 7 60 100%
as general partner of Servico Centre
Associates, Ltd., a Florida limited
partnership.
- ---------------------------------------------------------------------------------------------------------------------
SERVICO CENTRE ASSOCIATES, LTD.
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO WEST PALM BEACH, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO WINTER HAVEN, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. ALBANY HOTEL, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO NORTHWOODS, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERVICO WINDSOR, INC. Certificate No. 2 1,000 100%
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. BRUNSWICK MOTEL ENTERPRISES, INC. Certificate No. 5 200 100%
- ---------------------------------------------------------------------------------------------------------------------
IMPAC HOTEL GROUP, LLC
- ---------------------------------------------------------------------------------------------------------------------
IMPAC HOTELS I, LLC
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. IMPAC SPE #3, Inc., as sole general Certificate No. 2 100 100%
partner of Little Rock Lodging
Associates I, L.P., a Georgia limited
partnership.
- ---------------------------------------------------------------------------------------------------------------------
LITTLE ROCK LODGING ASSOCIATES I, L.P.
- ---------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN ATLANTA HILLSBORO Lodging, L.L.C.
- ---------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Grantor Name of Issuer State of Class of Par Shares
Organization Stock Value Authorized
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN RICHMOND SPE. INC., as sole Georgia Common $0.01 1,000
general partner of Lodgian Richmond,
L.L.C., a Gorgian limited liability
company.
- ----------------------------------------------------------------------------------------------------------------------------
LODGIAN RICHMOND, L.L.C. Georgia
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO ROLLING MEADOWS, INC. Illinois Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO CEDAR RAPIDS, INC. Iowa Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO METAIRIE, INC. Louisiana Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO COLUMBIA, INC. Maryland Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO COLESVILLE, INC. Maryland Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO MARYLAND, INC. Maryland Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. NH MOTEL ENTERPRISES, INC. Michigan Common $1.00 50,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. MINNEAPOLIS MOTEL ENTERPRISES, INC. Minnesota Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO ROSEVILLE, INC. Minnesota Common $1.00 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN MOUNT LAUREL, INC. New Jersey Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO JAMESTOWN, INC. New York Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO NEW YORK, INC. New York Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO NIAGARA FALLS, INC. New York Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO GRAND ISLAND, INC. New York Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. FAYETTEVILLE MOTEL ENTERPRISES, INC. North Carolina Common $1.00 100,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. APICO INNS OF GREEN TREE, INC. Pennsylvania Common $1.00 100,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. APICO HILLS, INC. Pennsylvania Common $1.00 100,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO HILTON HEAD, INC. South Carolina Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO AUSTIN, INC. Texas Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO MARKET CENTER, INC. Texas Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO HOUSTON, INC. Texas Common $0.01 1,000
- ----------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Grantor Name of Issuer Stock Certificate Number % of
Number of Shares Outstanding
Shares
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN RICHMOND SPE. INC., as sole Certificate No. 2 100 100%
general partner of Lodgian Richmond,
L.L.C., a Gorgian limited liability
company.
- --------------------------------------------------------------------------------------------------------------------
LODGIAN RICHMOND, L.L.C.
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO ROLLING MEADOWS, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO CEDAR RAPIDS, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO METAIRIE, INC. Certificate No. 3 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO COLUMBIA, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO COLESVILLE, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO MARYLAND, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. NH MOTEL ENTERPRISES, INC. Certificate No. 6 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. MINNEAPOLIS MOTEL ENTERPRISES, INC. Certificate No. 4 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO ROSEVILLE, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. LODGIAN MOUNT LAUREL, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO JAMESTOWN, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO NEW YORK, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO NIAGARA FALLS, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO GRAND ISLAND, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. FAYETTEVILLE MOTEL ENTERPRISES, INC. Certificate No. 4 100 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. APICO INNS OF GREEN TREE, INC. Certificate No. 7 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. APICO HILLS, INC. Certificate No. 5 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO HILTON HEAD, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO AUSTIN, INC. Certificate No. 3 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO MARKET CENTER, INC. Certificate No. 2 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
Lodgian Financing Corp. SERIVCO HOUSTON, INC. Certificate No. 3 1,000 100%
- --------------------------------------------------------------------------------------------------------------------
PART III
- ------------------------------------------------------------------------------------------------------------------------------------
Grantor Name of Issuer State of Description Debt Final
Organization of Debt Certificate Number Maturity
- ------------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
Grantor Name of Issuer Outstanding
Principal
Amount
- ---------------------------------------------------------------------------------------
-2-
Schedule II to the
Security Agreement
ASSIGNED AGREEMENTS
Grantor Assigned Agreement
- ------- ------------------
None.
Schedule III to the
Security Agreement
LOCATIONS OF EQUIPMENT AND INVENTORY
See attached.
- --------------------------------------------------------------------------------
Grantor Location of Equipment
------- and Inventory
-------------
- --------------------------------------------------------------------------------
Albany Hotel, INC. Omni Albany Hotel
State & Lodge Streets
Ten Eyck Plaza
Albany, NY 12207
- --------------------------------------------------------------------------------
Apico Hills, INC. Holiday Inn Parkway East
915 Brinton Rd.
Pittsburgh, PA 15221
- --------------------------------------------------------------------------------
Apico Inns Of Green Tree, INC. Holiday Inn Green Tree
401 Holiday Dr.
Pittsburgh, PA 15220
- --------------------------------------------------------------------------------
Brunswick Motel Enterprises, INC. Holiday Inn Brunswick
U.S. 341 at I-95
Brunswick, GA 31520
- --------------------------------------------------------------------------------
Dothan Hospitality 3053, INC. Holiday Inn Dothan
3053 Ross Clark Circle, SW
Dothan, AL 38301
- --------------------------------------------------------------------------------
Dothan Hospitality 3071, INC. Holiday Inn Dothan
3071 Ross Clark Circle, SW
Dothan, AL 38301
- --------------------------------------------------------------------------------
Fayetteville Motel Enterprises, INC. Holiday Inn Fayetteville
1844 Cedar Creek Rd.
Fayetteville, NC 28303
- --------------------------------------------------------------------------------
Gadsen Hospitality, Inc. Holiday Inn Express Gadsen
801 Cleveland Av.
Attalia, AL 35954
- --------------------------------------------------------------------------------
Little Rock Lodging Associates I, Residence Inn by Marriot
L.P. 1401 S. Shackleford Road
Little Rock, AR 72211
- --------------------------------------------------------------------------------
Lodgian Anaheim Inc 2045 South Harbor Boulevard
Anaheim, CA 92802
- --------------------------------------------------------------------------------
Lodgian Atlanta Hillsboro LLC 1800 Block of NW Tanadoowine Drive
Hillsboro, OR 97124
- --------------------------------------------------------------------------------
Lodgian Mount Laurel, INC. Marriott Inn
Atrium Way
Mount Laurel, NJ
- --------------------------------------------------------------------------------
Lodgian Ontario, Inc. 2200 Block of East Holt Boulevard
Ontario, CA 91761
- --------------------------------------------------------------------------------
Lodgian Richmond, L.L.C Marriott Inn
Dominion Blvd.
Richmond, VA
- --------------------------------------------------------------------------------
Minneapolis Motel Enterprises. INC. Holiday Inn St. Paul
1201 West County Rd.
East St. Paul, MN 55112
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NH Motel Enterprises, INC. NorthField Hilton
5500 Crooks Rd.
Troy, Michigan 48098
- --------------------------------------------------------------------------------
Servico Austin, INC. Holiday Inn Austin South
3401 South IH-35
Austin, TX 78741
- --------------------------------------------------------------------------------
Servico Cedar Rapids, Inc. Five Seasons Hotel
350 1st Ave. NE
Cedar Rapids, IA 53401
- --------------------------------------------------------------------------------
Servico Colesville, INC. Town Center
8727 Colesville Rd.
Silver Springs, MD 20910
- --------------------------------------------------------------------------------
Servico Columbia, INC. Columbia Hilton
5485 Twin Knolls Rd.
Columbia, MO 70001
- --------------------------------------------------------------------------------
Servico Ft. Pierce, INC. Holiday Inn Express Ft. Pierce
7151 Okeechobee Rd.
Fort Pierce, FL 34945
- --------------------------------------------------------------------------------
Servico Grand Island, INC. Holiday Inn Grand Island
100 Whitehaven Rd.
Grand Island, NY
- --------------------------------------------------------------------------------
Servico Hilton Head, INC. Four Points Hotel Hilton Head
35 South Forest Beach Dr.
Hilton Head, SC
- --------------------------------------------------------------------------------
Servico Houston, INC. Ramada Plaza Houston
12801 N.W. Freeway, US 290
Houston, TX
- --------------------------------------------------------------------------------
Servico Jamestown, INC. Holiday Inn Jamestown
150 West 4th St.
Jamestown, NY 14701
- --------------------------------------------------------------------------------
Servico Market Center, INC. Holiday Inn market Center Dallas
1955 Market Center Blvd.
Dallas, TX 75207
- --------------------------------------------------------------------------------
Servico Maryland, INC. Holiday Inn Washington, D.C.
8777 Georgia Av.
Silver Spring, MD 20920
- --------------------------------------------------------------------------------
Servico Metairie, INC. Quality Hotel Metairie
2261 North Causeway Blvd.
Metairie, LA 70001
- --------------------------------------------------------------------------------
Servico New York, INC. Clarion Niagara Falls
Third 8018 Falls Street
P.O. Box 845
Niagara Falls, NY 14303
- --------------------------------------------------------------------------------
Servico Niagara Falls, INC. Holiday Inn Niagara Falls
114 Buffalo Av.
Niagara Falls, NY 14303
- --------------------------------------------------------------------------------
-2-
- --------------------------------------------------------------------------------
Servico Northwoods, INC. Best Western Charleston International
Airport
7401 Northwoods Blvd.
North Charleston, SC 29418
- --------------------------------------------------------------------------------
Servico Pensacola 7200, INC. Holiday Inn University Mall Pensacola
7200 Plantation Rd.
Pensacola, Fl 32504
- --------------------------------------------------------------------------------
Servico Pensacola 7330, INC. Hampton Inn Pensacola
7330 Plantation Rd.
Pensacola, Fl 32504
- --------------------------------------------------------------------------------
Servico Pensacola, INC. Holiday Inn Express Pensacola
6501 Plantation Rd.
Pensacola, Fl 32505
- --------------------------------------------------------------------------------
Servico Rolling Meadows, Inc. Holiday Inn Rolling Meadows
3405 Algonquin Rd.
Rolling Meadows, IL 60008
- --------------------------------------------------------------------------------
Servico Roseville, INC. Comfort Inn Roseville
2715 Long Lake Rd.
Roseville, MN 55113
- --------------------------------------------------------------------------------
Servico West Palm Beach, INC. Sheraton West Palm Beach
630 Clearwater Park Rd
West Palm Beach, FL 33406
- --------------------------------------------------------------------------------
Servico Windsor, INC. Holiday Inn Select Windsor
1855 Huron Church Rd.
Windsor, Ontario Canada
- --------------------------------------------------------------------------------
Servico Winter Haven, INC. Holiday Inn Winter Haven
1150 3rd St. SW
Winter Haven, FL 33880
- --------------------------------------------------------------------------------
Sheffield Motel Enterprises, INC. Holiday Inn Sheffield
4900 Hatch Boulevard
Sheffield AL 35660
- --------------------------------------------------------------------------------
Palm Beach Motel Enterprises, Inc., Omni Hotel West Palm Beach
as the sole general partner 1601 Belevedere Road
of Servico Centre Associates, Ltd., West Palm Beach, FL, 33406
a Florida limited partnership.
- --------------------------------------------------------------------------------
AMI Operating Partners, L.P. Holiday Inn East Hartford
363 Roberts Road
East Hartford, CT 08106
Holiday Inn New Haven
30 Whalley Avenue
New Haven, CT 06511
Frederick Holiday Inn
999 West Patrick Street
Frederick, MD 21702
- --------------------------------------------------------------------------------
-3-
- --------------------------------------------------------------------------------
Cromwell Bridge Holiday Inn
1100 Cromwell Bridge Road
Towson, MD 21286
Belmont Holiday Inn
1800 Belmont Avenue
Baltimore, MD 21244
Holiday Inn York Arsenal Road
334 Arsenal Road
York, PA 17402
- --------------------------------------------------------------------------------
IMPAC Hotels I, LLC. Double Tree Club Louisville
9700 Bluegrass Parkway
Louisville, KY 40299
Double Tree Club Philadelphia
9461 Roosevelt Boulevard
Philadelphia, PA 19114
Fairfield Inn Valdosta
1311 St. Augustine Road
Valdosta, GA 31601
French Quarter Inn Memphis
2144 Madison Avenue
Memphis, TN 38104
Holiday Inn South Birmingham
1548 Montgomery Highway
Birmingham, AL 35216
Holiday Inn Marietta
2265 Kingston Court
Marietta, GA 30067
Holiday Inn Select DFW
4441 Highway 114 at Esters
Dallas, TX 75063
Holiday Inn Select Strongsvilie
15471 Royalton Drive
Cleveland, OH 44136
Holiday Inn St. Louis North
4545 N. Lindbergh Boulevard
St. Louis, MO 63044
- --------------------------------------------------------------------------------
-4-
- --------------------------------------------------------------------------------
Holiday Inn St. Louis West
3551 Pennridge Drive
Bridgeton, MO 63044
Holiday Inn Valdosta
1309 St. Augustine Road
Valdosta, GA 31601
Super 8 Hazard
125 Village Lane
Hazard, KY 41701
Super 8 Prestonburg
550 South U.S. 23
Prestonburg, KY 41653
Holiday Inn Express Nashville
981 Murfreesboro Road
Nashville, TN 37217
Courtyard by Marriott
4350 Ridgemont Drive
Abilene, TX 79606
Courtyard by Marriott
1001 McClain Road
Bentonville, AR 72712
Courtyard by Marriott (Buckhead)
3332 Peachtree Road, N.E.
Atlanta, GA 30326
Courtyard by Marriot
46 Cavalier Boulevard
Florence, KY 41042
Comfort Suites
2681 Dry Pocket Road
Greer, SC 29650
Holiday Inn SunSpree
1601 N. Ocean Boulevard
Surfside Beach, SC 29575
- --------------------------------------------------------------------------------
-5-
- --------------------------------------------------------------------------------
Courtyard by Marriott
3835 Technology Drive
Paducah, KY 42001
Comfort Inn
2635 N.E. Loop #410
San Antonio, TX 78217
- --------------------------------------------------------------------------------
-6-
Schedule IV to the
Security Agreement
CHIEF PLACE OF BUSINESS, CHIEF EXECUTIVE OFFICE
AND FEDERAL TAX IDENTIFICATION NUMBER
Chief Place of Business and Federal Tax
Grantor Chief Executive Office Identification Number
- ------- ---------------------- ---------------------
See Attached.
- ------------------------------------------------------------------------------------------------------------------------------------
Grantor Chief Place of Business Chief Executive Federal
------- ----------------------- Office Taxpayer ID
------ Number
------
- ------------------------------------------------------------------------------------------------------------------------------------
Albany Hotel, INC. Omni Albany Hotel c/o Lodgian, Inc. 65-0384279
State & Lodge Streets 3445 Peachtree Rd.
Ten Eyck Plaza Suite 700
Albany, NY 12207 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Apico Hills, INC. Holiday Inn Parkway East c/o Lodgian, Inc. 62-0962543
915 Brinron Rd. 3445 Peachtree Rd.
Pittsburgh, PA 15221 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Apico Inns Of Green Tree, INC. Holiday Inn Green Tree c/o Lodgian, Inc. 62-0788158
401 Holiday Dr. 3445 Peachtree Rd.
Pittsburgh, PA 15220 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Brunswick Motel Enterprises, INC. Holiday Inn Brunswick c/o Lodgian, Inc. 59-1693138
U.S. 341 at I-95 3445 Peachtree Rd.
Brunswick, GA 31520 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Dothan Hospitality 3053, INC. Holiday Inn Dothan c/o Lodgian, Inc. 63-1166288
3053 Ross Clark Circle, SW 3445 Peachtree Rd.
Dothan, AL 38301 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Dothan Hospitality 3071, INC. Holiday Inn Dothan c/o Lodgian, Inc. H.I. DOTHAN
3071 Ross Clark Circle, SW 3445 Peachtree Rd. 63-1166288
Dothan, AL 38301 Suite 700 Hampton:
Atlanta, GA 30326 63-1166287
- ------------------------------------------------------------------------------------------------------------------------------------
Fayetteville Motel Enterprises, INC. Holiday Inn Fayetteville c/o Lodgian, Inc. 59-2195645
1844 Cedar Creek Rd. 3445 Peachtree Rd.
Fayetteville, NC 28303 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Gadsen Hospitality, Inc. Holiday Inn Express Gadsen c/o Lodgian, Inc. 63-1166289
801 Cleveland Av. 3445 Peachtree Rd.
Attalia, AL 35954 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Little Rock Lodging Associates I, Residence Inn by Marriot c/o Lodgian, Inc. 58-2350788
L.P. 1401 S. Shackleford Road 3445 Peachtree Rd.
Little Rock, AR 72211 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Anaheim Inc 2045 South Harbor Boulevard c/o Lodgian, Inc. 65-0849714
Anaheim, CA 92802 3445 Peachtree Rd.
Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Atlanta Hillsboro LLC 18000 Block of NW c/o Lodgian, Inc. 58-2392166
Tanasbourne Drive 3445 Peachtree Rd.
Hillsboro, OR 97124 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
-2-
- ------------------------------------------------------------------------------------------------------------------------------------
Grantor Chief Place of Business Chief Executive Federal
------- ----------------------- Office Taxpayer ID
------ Number
------
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Mount Laurel, INC. Marriott Inn c/o Lodgian, Inc. 58-2460123
Atrium Way 3445 Peachtree Rd.
Mount Laurel, NJ Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Ontario Inc. 2200 Block of c/o Lodgian, Inc. 65-0842533
East Holt Boulevard 3445 Peachtree Rd.
Ontario, CA 91761 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Richmond, L.L.C Marriott Inn c/o Lodgian, Inc. 58-2460119
Dominion Blvd. 3445 Peachtree Rd.
Richmond, VA Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Minneapolis Motel Enterprises, Holiday Inn St. Paul c/o Lodgian, Inc.
INC. 1201 West County Rd. 3445 Peachtree Rd. 59-2722347
East St. Paul, MN 55112 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
NH Motel Enterprises, INC. NorthField Hilton c/o Lodgian, Inc. 59-2256713
5500 Crooks Rd. 3445 Peachtree Rd.
Troy, Michigan 48098 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Austin, INC. Holiday Inn Austin South c/o Lodgian, Inc. 65-0654220
3401 South IH-35 3445 Peachtree Rd.
Austin, TX 78741 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Cedar Rapids, Inc. Five Seasons Hotel c/o Lodgian, Inc. 39-1882535
350 1st Av. NE 3445 Peachtree Rd.
Cedar Rapids, IA 53401 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Colesville, INC. Town Center c/o Lodgian, Inc. 65-0432696
8727 Colesville Rd. 3445 Peachtree Rd.
Silver Springs, MD 20910 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Columbia, INC. Columbia Hilton c/o Lodgian, Inc. Colombia MD
5485 Twin Knolls Rd. 3445 Peachtree Rd. 58-2348775
Columbia, MD 70001 Suite 700 Quality-
Atlanta, GA 30326 Metairie LA
65-0654223
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Ft. Pierce, INC. Holiday Inn Express Ft. c/o Lodgian, Inc. 65-0592830
Pierce 3445 Peachtree Rd.
7151 Okeechobee Rd. Suite 700
Fort Pierce, FL 34945 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Grand Island, INC. Holiday Inn Grand Island c/o Lodgian, Inc. 16-1540702
100 Whitehaven Rd. 445 Peachtree Rd.
Grand Island, NY Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
-3-
- ------------------------------------------------------------------------------------------------------------------------------------
Grantor Chief Place of Business Chief Executive Federal
------- ----------------------- Office Taxpayer ID
------ Number
------
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Hilton Head, INC. Four Points Hotel Hilton c/o Lodgian, Inc. 62-1003086
Head 3445 Peachtree Rd.
35 South Forest Beach Dr. Suite 700
Hilton Head, SC Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Houston, INC. Ramada Plaza Houston c/o Lodgian, Inc. 58-2348780
12801 N.W. Freeway US 290 3445 Peachtree Rd.
Houston, TX Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Jamestown, INC. Holiday Inn Jamestown c/o Lodgian, Inc. 58-2348783
150 West 4th St. 3445 Peachtree Rd.
Jamestown, NY 14701 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Market Center, INC. Holiday Inn market Center c/o Lodgian, Inc. 75-2708406
Dallas 3445 Peachtree Rd.
1955 Market Center Blvd. Suite 700
Dallas, TX 75207 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Maryland, INC. Holiday Inn Washington, c/o Lodgian, Inc. 58-2348773
D.C. 3445 Peachtree Rd.
8777 Georgia Av. Suite 700
Silver Spring, MD 20920 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Metairie, INC. Quality Hotel Metairie c/o Lodgian, Inc. 65-0654223
2261 North Causeway Blvd. 3445 Peachtree Rd.
Metairie, LA 70001 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico New York, INC. Clarion Niagara Falls c/o Lodgian, Inc. 16-1540703
Third & Old Falls Streets 3445 Peachtree Rd.
P.O. Box 845 Suite 700
Niagara Falls, NY 14303 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Niagara Falls, INC. Holiday Inn Niagara Falls c/o Lodgian, Inc. 16-1540701
114 Buffalo Av. 3445 Peachtree Rd.
Niagara Falls, NY 14303 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Northwoods, INC. Best Western Charleston c/o Lodgian, Inc. 65-0503927
International Airport 3445 Peachtree Rd.
7401 Northwoods Blvd. Suite 700
North Charleston, SC 29418 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola 7200, INC. Holiday Inn University Mall c/o Lodgian, Inc. 65-0592816
Pensacola 3445 Peachtree Rd.
7200 Plantation Rd. Suite 700
Pensacola, Fl 32504 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola 7330, INC. Hampton Inn Pensacola c/o Lodgian, Inc. 65-0592815
7330 Plantation Rd. 3445 Peachtree Rd.
Pensacola, Fl 32504 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola, INC. Holiday Inn Express c/o Lodgian, Inc. 65-0592674
Pensacola 3445 Peachtree Rd.
- ------------------------------------------------------------------------------------------------------------------------------------
-4-
- ------------------------------------------------------------------------------------------------------------------------------------
Grantor Chief Place of Business Chief Executive Federal
------- ----------------------- Office Taxpayer ID
------ Number
------
- ------------------------------------------------------------------------------------------------------------------------------------
6501 Plantation Rd. Suite 700
Pensacola, Fl 32505 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Rolling Meadows, Inc. Holiday Inn Rolling c/o Lodgian, Inc. 58-2348777
Meadows 3445 Peachtree Rd.
3405 Algonquin Rd. Suite 700
Rolling Meadows, IL 60008 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Roseville, INC. Comfort Inn Roseville c/o Lodgian, Inc. 41-1872737
2715 Long Lake Rd. 3445 Peachtree Rd.
Roseville, MN 55113 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico West Palm Reach, INC. Sheraton West Palm Beach c/o Lodgian, Inc. 59-3473157
630 Clearwater Park Rd. 3445 Peachtree Rd.
West Palm Beach, FL 33406 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Windsor, INC. Holiday Inn Select Windsor c/o Lodgian, Inc.
1855 Huron Church Rd. 3445 Peachtree Rd. 98-0175025
Windsor, Ontario Canada Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Winter Haven, INC. Holiday Inn Winter Haven c/o Lodgian, Inc.
1150 3rd St. SW 3445 Peachtree Rd. 65-0787913
Winter Haven, FL 33880 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Sheffield Motel Enterprises, INC. Holiday Inn Sheffield c/o Lodgian, Inc. 59-2059817
4900 Hatch Boulevard 3445 Peachtree Rd.
Sheffield AL 35660 Suite 700
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC. c/o Lodgian, Inc. c/o Lodgian, Inc. 58-2294245
3445 Peachtree Rd. 3445 Peachtree Rd.
Suite 700 Suite 700
Atlanta, GA 30326 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. c/o Lodgian, Inc. c/o Lodgian, Inc. 65-0798740
3445 Peachtree Rd. 3445 Peachtree Rd.
Suite 700 Suite 700
Atlanta, GA 30326 Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
Palm Beach Motel Enterprises, Inc., Omni Hotel West Palm Beach c/o Lodgian, Inc. 59-1978788
as the sole general partner of 1601 Belevedere Road 3445 Peachtree Rd.
Servico Centre Associates, Ltd., a West Palm Beach, FL 33406 Suite 700
Florida limited partnership. Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
-5-
Schedule V to the
Security Agreement
TRADE NAMES
Grantor Trade Names
- ------- -----------
None.
Schedule VI to the
Security Agreement
DEPOSIT ACCOUNTS
See Attached.
Property Name: Property Address: Bank Name: Account Number: Bank Address:
- ----------------------------------------------------------------------------------------------------------------------------
Omni Albany Hotel State and Lodge Streets Key Bank NA 325760019167 80 State St.
Ten Eyck Plaza Albany, NY 12207
Albany, NY 12207
Holiday Inn 915 Brinton Rd. Mellon Bank 1718287 2020 Ardmore Blvd.
Parkway East Pittsburgh, PA 15221 Pittsburgh, PA 15221
Holiday Inn Green 401 Holiday Dr. Pittsburgh National Bank 0002011432 920 Poplar St.
Tree Pittsburgh, PA 15220 Pittsburgh, PA 15220
Holiday Inn U.S. 34-1 at I-98 NationsBank 001229466699 101 South Tryon Street
Brunswick Brunswick, GA 31620 Charolette, North Carolina 28255
Holiday Inn Dothan 3053 Ross Clark Circle, SW SouthTrust Bank 67877267 P.O. Box 809
Dothan, AL 38301 Dothan, AL 36302
Hampton Inn Dothan 3071 Ross Clark Circle, SW SouthTrust Bank 87877265 P.O. Box 809
Dothan, AL 38301 Dothan, AL 36302
Holiday Inn 1844 Cedar Creek Rd. First Union National 2072685231343 200 Green Street
Fayetteville Fayetteville, NC 28303 Fayetteville, NC 23601
Holiday Inn 801 Cleveland Avenue SouthTrust Bank 67877309 P.O. Box 809
Express Gadsen Attalia AL 35954 Dothan, AL 36302
Residence Inn by 1401 S. Shackleford Road NationsBank 5043070528 P.O. Box 418906
Marriott Little Rock, AR 72211 Kansas City, MO 84141-8906
Lodgian Anaheim
Inc.
Lodgian Atlanta
Hillsborough
Marriott Inn Atrium Way
Mount Laurel, New Jersey
Lodgian Ontario
Inc.
Marriott Inn Dominion Blvd.
Richmond, Virginia
Holiday Inn St. 1201 West Country Rd. Norwest Bank of Minnesota 3522097408 1220 West Country Road.E
Paul East St. Paul, MN 55112 Arden Hills, MN 55112
Northfield Hilton 6500 Crooks Rd. Comerica Inc 2401005612 4999 Crooks Rd.
Troy, Michigan 48098 Troy, MI 46098
Holiday Inn Austin 3401 South HI-35 Wells Fargo Bank 4169739945 P.O. Box 63020
South Austin, TX 78741 San Francisco, CA 94163
Five Seasons Hotel 350 1st Ave., NE Norwest Bank 3000438578 665 South 50th St.
Cedar Rapids, IA 53401 West Des Moines, IA 50265
Town Center 8727 Colesville Rd. First Union National Bank 2030000812952 10300 Little Patuxent Pkwy
Silver Spring, MD 20910 of MD Columbia, MD 21044
Columbia Hilton 5485 Twin Knolls Road First Union National Bank 2030000812855 10300 Little Patuxent Pkwy
Columbia, MD 21045 of MD Columbia, MD 21044
Holiday Inn Express 7151 Okeechobee Rd. NationsBank 003300673024 101 South Tryon Street
Ft. Pierce Fort Pierce, FL 34945 Charolette, North Carolina 28255
Holiday Inn Grand 100 Whitehaven Rd. Marine Midland Bank 22000020834168900 8301 Niagara Blvd.
Island Grand Island, NY Niagara Falls, NY 14304
Four Points Hilton 35 South Forest Beach Dr. Nations Bank 1611925382 101 South Tryon Street
Head Hilton Head SC Charolette, North Carolina 28255
Servico Houston, MO NationsBank [ILLEGIBLE] P.O. Box 418906
Kansas City, MO 84141-8906
Holiday Inn 160 West 4th St. Key Bank 327700021055 202 N Main St.
Jamestown Jamestown, NY 14701 Jamestown, NY 14701
Holiday Inn Market 1955 Market Center Blvd. Wells Fargo Bank 747862087 1445 Ross Ave.
Center Dallas Dallas, TX 75207 Dallas, TX 76202
Holiday Inn 8777 Georgia Ave. First Union National Bank [ILLEGIBLE] 10305 Little Patuxent Pkwy
Washington D.C. Silver Spring, MD 20920 of MD Columbia, MD 21044
Quality Hotel 2261 North Causeway Blvd. Hibernia National Bank 812393008 P.O. Box 81640
Metairie Metairie, LA 70001 New Orleans, LA 70161
Clarion Niagara Third & Old Falls Streets Marine Midland 834159981 2419 Military Rd.
Falls P.O. Box 645 Niagara Falls, NY 14304
Niagara Falls, NY 14303
Holiday Inn 114 Buffalo Ave. Marine Midland 834159988 2419 Military Rd.
Niagara Falls Niagara Falls, NY 14303 Niagara Falls, NY 14304
Best Western 7401 Northwoods Blvd. First Union National of SC 2010000292006 7804 Rivers Avenue
Charleston North Charleston, SC 29416 N. Charlestown, SC 29406
International
Airport
Holiday Inn 7200 Plantation Rd. NationsBank 1171987399 101 South Tryon Street
University Mall Pensacola, FL 32504 Charolette, North Carolina 28255
Pensacola
Holiday Inn 6501 Plantation Rd. First Union National [ILLEGIBLE] 1801 Palm Beach Lakes Blvd
Express Pensacola Pensacola, FL 32605 West Palm Beach, FL 33401
Holiday Inn 3405 Algonquin Rd. Bank One 616201570 311 S. Arlington Heights Rd.
Rolling Meadows Rolling Meadows, IL Arlington Heights, IL [ILLEGIBLE]
60008
Comfort Inn 2715 Long Lake Rd. Norwest Bank of MN 1000039153 2015 Third Avenue North
Roseville Roseville, MN 55113 Anoka, MN 66305
Sheraton West Palm 630 Clearwater Park Rd. NationsBank [ILLEGIBLE] 101 South Tryon Street
Beach West Palm Beach, FL 33406 Charolette, North Carolina 28255
Holiday Inn Select 1865 Huron Church Road Royal Bank of Canada [ILLEGIBLE] 1600 Huron Church Rd
Windsor Windsor, Ontario Canada Windsor, Ontario Canada N9C-2K2
Royal Bank of Canada 4002325 1600 Huron Church Rd
Windsor, Ontario Canada N9C-2K2
Holiday Inn Winter 1160 3rd Street SW NationsBank [ILLEGIBLE] 101 South Tryon Street
Haven Winter Haven, FL 33660 Charolette, North Carolina 28255
Holiday Inn 4900 Hatch Blvd Colonial Bank of NWA [ILLEGIBLE] [ILLEGIBLE]
Sheffield Sheffield, AL 35660 [ILLEGIBLE]
IMPAC Hotels I, LLC 3445 Peachtree Rd NE
Suite 700
Atlanta, GA 30326
Comfort Inn San 2635 N.E. Loop, 410 International Bank of [ILLEGIBLE] 130 East Travis St.
Antonio San Antonio, TX 78217 Commerce San Antonio, TX 78205
Comfort Inn 2681 Dry Pocket Road BB&T of South Carolina [ILLEGIBLE] 3841 Pelham Road
Greenville Greer, SC 29650 Greenville, SC 28615
Courtyard Buckhead 3332 Peachtree Road NE SunTrust [ILLEGIBLE] Mail Code 5099
Atlanta, GA 30326 P.O. Box 4416
Atlanta, GA 30302
Courtyard Abilene 4350 Ridgemont Drive First National Bank of [ILLEGIBLE] P.O. Box 701
Abilene, TX 79606 Abilene Abilene, TX 79604
Courtyard Florence 46 Cavelier Blvd. Star Bank [ILLEGIBLE] 426 Walnut Street
Florence, KY 41042 Cincinnati, OH 45264-0999
Courtyard 1001 McClain Road The Bank of Bentonville [ILLEGIBLE] P.O. Box 1220
Bentonville Bentonville, AR 72712 Bentonville, AR 72712
DoubleTree Club 9461 Roosevelt Blvd. First Union Bank [ILLEGIBLE] 9133 Roosevelt Blvd.
Philadelphia Philadelphia, PA 19114 Philadelphia, PA 19114
DoubleTree Club 9700 Bluegrass Parkway Bank One-Kentucky [ILLEGIBLE] 450 E. Washington St.
Louisville Louisville, KY 40299 Indianapolis, IN 46277-0224
French Quarter 2144 Madison Avenue First Tennessee Bank [ILLEGIBLE] P.O. Box 64
Suites
Memphis Memphis, TN 30104 Memphis, TN [ILLEGIBLE]
Holiday Inn 1309 St. Augustine Rd. Citizens Community Bank [ILLEGIBLE] 400 N. Valdosta Rd.
Valdosta Valdosta, GA 31601 Valdosta, GA 31601
Fairfield Inn 1311 St. Augustine Rd. Citizens Community Bank [ILLEGIBLE] 400 N. Valdosta Rd.
Valdosta Valdosta, GA 31601 Valdosta, GA 31601
Holiday Inn Select 4441 Hwy. 114 @ Esters Blvd. Wells Fargo Bank [ILLEGIBLE] 1445 Rose Ave.
Dallas Fort Worth Irving (Dallas), TX 75083 Dallas, TX 75202
Holiday Inn 1649 Montgomery Highway Regions Bank 03-0087-6437 P.O. Box 10247
Birmingham Birmingham, AL 35216 Birmingham, AL 35202-0247
Holiday Inn Suites 2265 Kingston Court SunTrust Bank [ILLEGIBLE] Mail Code 5099
Marietta Marietta, GA 30067 P.O. Box 4416
Atlanta, GA 30302
Holiday Inn 1801 N. Ocean Blvd. Wachovia Bank [ILLEGIBLE] P.O. Box 3098
Sunspree Surfside Beach, SC 29575 Winston-Salem, NC 27150-0025
Myrtle Beach
Holiday Inn 951 Murfreesboro Road First American National [ILLEGIBLE] NA 7201
Express Nashville Nashville, TN 37217 Bank 560 Metroplex DR.
Nashville, TN 37271
Holiday Inn St. 3551 Pennridge Drive Mercantile Bank 10110649-5 721 Locust St.
Louis West Bridgeton, MO 63044 St. Louis, MO 63101
Holiday Inn St. 4545 N. Lindbergh Boulevard Mercantile Bank 169052079-4 721 Locust St.
Louis North St. Louis, MO 63044 St. Louis, MO 63101
Holiday Inn Select 15471 Royalton Road Star Bank [ILLEGIBLE] 426 Walnut Street
Strongsville Cleveland, OH 44136 Cincinnati, OH 45264-0999
Super 8 Hazard 125 Village Lane Peoples Bank and Trust [ILLEGIBLE] P.O. Box 989
Hazard, KY 41701 Hazard, KY 41702
Super 8 Prestonburg 550 South US23 First Commonwealth Bank 351003401 First Commonwealth Bank
Prestonburg, KY 45853 Prestonburg, KY 41653
Courtyard Paducah 3835 Technology Drive Union Planters Bank 100-0666-1 P.O. Box 387
Paducah, KY 42001 Memphis, TN 38147-0387
Holiday Inn East 363 Roberts Street Bank of South Windsor 3311913012 280 Roberts Street
Hartford E. Hartford, CT 08106 East Hartford, CT [ILLEGIBLE]
Holiday Inn New 30 Whalley Avenue Bank of South Windsor [ILLEGIBLE] 1695 Ellington Rd.
Haven New Haven, CT 06511 South Windsor, CT 06974-2716
Frederick Holiday 993 W. Patrick Street NationsBank [ILLEGIBLE] 6400 Security Blvd.
Inn Frederick, MD 21702 Baltimore, MD 21207
Belmont Holiday Inn 1800 Belmont Avenue NationsBank [ILLEGIBLE] 6400 Security Blvd.
Baltimore, MD 21244 Baltimore, MD 21207
Holiday Inn 334 Arsenal Road Corestates-First Union [ILLEGIBLE] [ILLEGIBLE] N. George St.
Arsenal Rd. York, PA 17402-1908 York, PA 17404
Holiday Inn 2200 Cromwell Bridge Road NationsBank [ILLEGIBLE] 6400 Security Blvd.
Cromwell Bridge Towson, MD 21288-2218 Baltimore, MD 21207
Exhibit A to the
Security Agreement
FORM OF SECURITY AGREEMENT SUPPLEMENT
[Date of Security Agreement Supplement]
- ----------------------------------,
as the Collateral Agent for the
Secured Parties referred to in the
Credit Agreement referred to below
- ----------------------------------
- ----------------------------------
- ----------------------------------
Attn:
-----------------------------
Lodgian Financing Corp.
Ladies and Gentlemen:
Reference is made to (i) the Credit Agreement dated as of July 23, 1999
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Lodgian Financing Corp., a Delaware
corporation, as the Borrower, the Lender Parties party thereto, Morgan Stanley
Senior Funding, Inc., as collateral agent (together with any successor
collateral agent appointed pursuant to Article VIII of the Credit Agreement, the
"Collateral Agent"), and Morgan Stanley Senior Funding, Inc., as administrative
agent for the Lender Parties, and (ii) the Security Agreement dated July __,
1999 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Security Agreement") made by the Grantors from time to time
party thereto in favor of the Collateral Agent for the Secured Parties.
Capitalized terms not otherwise defined herein shall have the same meanings as
specified therefor in the Credit Agreement or the Security Agreement.
Section 1. Grant of Security. The undersigned hereby assigns and
pledges to the Collateral Agent for the benefit of the Secured Parties, and
hereby grants to the Collateral Agent for the benefit of the Secured Parties, a
lien on, and security interest in, all of its right, title and interest in and
to all of the Collateral of the undersigned, whether now owned or hereafter
acquired by the undersigned, wherever located and whether now or hereafter
existing, including, without limitation, the property and assets of the
undersigned set forth on the attached supplements to the Schedules to the
Security Agreement.
Section 2. Security for Obligations. The pledge and assignment of,
and the grant of a lien on and security interest in, the Collateral by the
undersigned under this Security Agreement Supplement and the Security Agreement
secures the payment of all Obligations of the undersigned now or hereafter
existing under or in respect of the Loan Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing Obligations), whether direct or indirect,
absolute or contingent, and whether for principal, reimbursement obligations,
interest, premiums, penalties, fees, indemnifications, contract causes of
action, costs, expenses or otherwise. Without limiting the generality of the
foregoing, this Security Agreement Supplement and the Security Agreement secures
the payment of all amounts that constitute part of the Secured Obligations and
that would be owed by the undersigned to any Secured Party under the Loan
Documents but for the fact that such Secured Obligations are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the undersigned or any Grantor.
Section 3. Supplements to Security Agreement Schedules. The
undersigned has attached hereto supplements to each of the Schedules to the
Security Agreement, and the undersigned hereby certifies, as of the date first
above written, that such supplements have been prepared by the undersigned in
substantially the form of the Schedules to the Security Agreement and are
complete and correct in all material respects.
Section 4. Representations and Warranties. The undersigned hereby
makes each representation and warranty set forth in Section 9 of the Security
Agreement (as supplemented by the attached supplements) to the same extent as
each other Grantor.
Section 5. Obligations Under the Security Agreement. The undersigned
hereby agrees, as of the date first above written, to be bound as a Grantor by
all of the terms and provisions of the Security Agreement to the same extent as
each of the other Grantors. The undersigned further agrees, as of the date first
above written, that each reference in the Security Agreement to an "Additional
Grantor" or a "Grantor" shall also mean and be a reference to the undersigned,
and each reference in any of the other Loan Documents to a "Grantor" or a "Loan
Party" shall also mean and be a reference to the undersigned.
Section 6. Governing Law; Jurisdiction; Etc. This Security
Agreement Supplement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
[NAME OF ADDITIONAL GRANTOR]
By_______________________________
Title:
Address of principal place of
business and chief executive office
and for notices:
-----------------------
Exhibit B to the
Security Agreement
FORM OF PLEDGED ACCOUNT LETTER
_______________, ____
[Name and address
of Pledged Account Bank]
[Name of Grantor]
Gentlemen/women:
Reference is made to the concentration account listed on Schedule I
hereto (such concentration or account being the "Pledged Account") maintained
with you by (the "Grantor"). Pursuant to the Security Agreement dated July 23,
1999 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Security Agreement"), the Grantor has granted to Morgan
Stanley Senior Funding, Inc., as Collateral Agent (together with any successor
collateral agent appointed pursuant to Article VIII of the Credit Agreement, the
"Collateral Agent") for the Secured Parties referred to in the Credit Agreement
dated as of July 23, 1999, a security interest in certain property of the
Grantor, including, among other things, the following (the "Account
Collateral"): the Pledged Account, all funds held therein and all certificates
and instruments, if any, from time to time representing or evidencing the
Pledged Account, all interest, dividends, distributions, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the then existing Account
Collateral and all proceeds of any and all of the foregoing Account Collateral
and, to the extent not otherwise included, all (i) payments under insurance
(whether or not the Collateral Agent is the loss payee thereof), or any
indemnity, warranty or guaranty, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Account Collateral and (ii) cash.
It is a condition to the continued maintenance of the Pledged Account with you
that you agree to this letter agreement.
By executing this letter agreement, you acknowledge notice of, and
consent to the grant of the lien on, and security interest in, and the pledge
and assignment of, the Account Collateral to the Collateral Agent for the
benefit of the Secured Parties and you confirm to the Collateral Agent that the
description of the Pledged Account set forth on Schedule I hereto is correct and
that you have not received any notice of any other lien on, security interest
in, pledge or assignment of, or other claim (other than that of the Grantor) on
the Pledged Account. Further, you hereby agree with the Collateral Agent that:
(a) Notwithstanding anything to the contrary in any other agreement
relating to the Pledged Account, the Pledged Account is and will be
subject to the security interest of the Secured Parties in the Pledged
Account, will have the title set forth opposite the account number
therefor on Schedule I hereto and will be subject to written instructions
from an officer of the Collateral Agent.
(b) Unless and until the Collateral Agent shall deliver notice to you (a
"Direction Notice") directing you to no longer permit the Grantor to withdraw
funds from the Pledged Account (which notice shall be delivered only if an Event
of Default has occurred and is continuing under the Credit Agreement (as defined
in the Security Agreement)), the Grantor is authorized by the Collateral Agent
to withdraw funds credited to the Pledged Account. Upon delivery of a Direction
Notice by the Collateral Agent to you and until the Direction Notice is
withdrawn, you shall no longer follow instructions from the Grantor or any
person acting on behalf of the Grantor with respect to the Pledged Account and
shall instead take instructions solely from the Collateral Agent (including
instructions to withdraw and transfer funds from the Pledged Account).
You hereby represent and warrant that the person executing this
letter agreement on your behalf is duly authorized to do so.
No amendment or waiver of any provision of this letter agreement,
nor consent to any departures by you or the Grantor herefrom, shall be effective
unless the same shall be in writing as signed by you, the Grantor and the
Collateral Agent.
This letter agreement shall be binding upon you and your successors
and assigns and shall inure to the benefit of the Secured Parties and their
successors, transferees and assigns. You may terminate this letter agreement
upon thirty days' prior written notice to the Grantor and the Collateral Agent.
This letter agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this letter agreement by telecopier shall be effective as
delivery of an original executed counterpart of this letter agreement.
Please indicate your acknowledgment of and agreement to the
provisions of this letter agreement by signing in the appropriate space provided
below and returning this letter agreement to ________________, _______________,
__________, ________ ______, Telecopier No.: (212) ___-____, Attention:
________________. If you elect to deliver this letter agreement by telecopier,
please arrange for the executed original to follow by next-day courier.
This letter agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
[NAME OF GRANTOR]
By
Title:
[NAME OF COLLATERAL AGENT], as
Collateral Agent
By
Title:
Acknowledged and agreed to as of the date first above written:
[NAME OF PLEDGED ACCOUNT BANK]
By _________________________________
Title:
Schedule I to the
Pledged Account Letter
Concentration Account Number Concentration Account Name
- ---------------------------- --------------------------
Exhibit C to the
Security Agreement
FORM OF CONSENT AND AGREEMENT
The undersigned hereby (a) acknowledges notice of, and consents to
the terms and provisions of, the Security Agreement dated July 23, 1999 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Security Agreement", the terms defined therein being used herein as
therein defined) from ____________________ (the "Grantor") and certain other
grantors from time to time party thereto to Morgan Stanley Senior Funding, Inc.,
as Collateral Agent (the "Collateral Agent") for the Secured Parties referred to
therein, (ii) consents in all respects to the pledge and assignment to the
Collateral Agent of all of the Grantor's right, title and interest in, to and
under the Assigned Agreement (as defined below) pursuant to the Security
Agreement, (iii) acknowledges that the Grantor has provided it with notice of
the right of the Collateral Agent in the exercise of its rights and remedies
under the Security Agreement to make all demands, give all notices, take all
actions and exercise all rights of the Grantor under the Assigned Agreement, and
(iv) agrees with the Collateral Agent that:
(i) The undersigned will make all payments to be made by it under or
in connection with the __________ Agreement dated _______________, ____
(the "Assigned Agreement") between the undersigned and the Grantor
directly to the Collateral Account or otherwise in accordance with the
instructions of the Collateral Agent.
(ii) All payments referred to in paragraph (i) above shall be made
by the undersigned irrespective of, and without deduction for, any
counterclaim, defense, recoupment or set-off and shall be final, and the
undersigned will not seek to recover from any Secured Party for any reason
any such payment once made.
(iii) The Collateral Agent or its designee shall be entitled to
exercise any and all rights and remedies of the Grantor under the Assigned
Agreement in accordance with the terms of the Security Agreement, and the
undersigned shall comply in all respects with such exercise.
(iv) The undersigned will not, without the prior written consent of
the Collateral Agent, (A) cancel or terminate the Assigned Agreement or
consent to or accept any cancellation or termination thereof, or (B)
amend, amend and restate, supplement or otherwise modify the Assigned
Agreement, except, in each case, to the extent otherwise permitted under
the Credit Agreement referred to in the Security Agreement.
(v) In the event of a default by the Grantor in the performance of
any of its obligations under the Assigned Agreement, or upon the
occurrence or non-occurrence of any event or condition under the Assigned
Agreement which would immediately or with the passage of any applicable
grace period or the giving of notice, or both, enable the
undersigned to terminate or suspend its obligations under the Assigned
Agreement, the undersigned shall not terminate the Assigned Agreement
until it first gives written notice thereof to the Collateral Agent and
permits the Grantor and the Collateral Agent the period of time afforded
to the Grantor under the Assigned Agreement to cure such default.
(vi) The undersigned shall deliver to the Collateral Agent,
concurrently with the delivery thereof to the Grantor, a copy of each
notice, request or demand given by the undersigned pursuant to the
Assigned Agreement.
(vii) Except as specifically provided in this Consent and Agreement,
neither the Collateral Agent nor any other Secured Party shall have any
liability or obligation under the Assigned Agreement as a result of this
Consent and Agreement, the Security Agreement or otherwise.
In order to induce the Lender Parties to make Advances and issue
Letters of Credit under the Credit Agreement and the Hedge Banks to enter into
Secured Hedge Agreements from time to time, the undersigned repeats and
reaffirms for the benefit of the Secured Parties the representations and
warranties made by it in the Assigned Agreement.
This Consent and Agreement shall be binding upon the undersigned and
its successors and assigns, and shall inure, together with the rights and
remedies of the Collateral Agent hereunder, to the benefit of the Secured
Parties and their successors, transferees and assigns. This Consent and
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned has duly executed this Consent
and Agreement as of the date set opposite its name below.
Dated: _______________, ____ [NAME OF OBLIGOR]
By
Title: