GUARANTY
This Guaranty ("Guaranty") is made as of December 11, 1998, by Servico,
Inc. ("Servico"), a Florida corporation, Lodgian, Inc. ("Lodgian"), a Delaware
corporation, Servico Operations Corporation, a Florida corporation, Xxxxxx Motel
Enterprises, Inc., a Pennsylvania corporation, KDS Corporation, a Nevada
corporation, AMIOP Acquisition Corp., a Delaware corporation, Servico
Acquisition Corp., a Florida corporation, and Palm Beach Motel Enterprises,
Inc., a Florida corporation, (collectively, together with their respective
successors and assigns, each, a "Guarantor" and together, the "Guarantors"),
each having an address c/o Lodgian, Inc., 0000 Xxxxxxxxx Xxxx, X.X., Two Live
Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, in favor of Xxxxxx Financial
Corporation ("Xxxxxx"), a Pennsylvania corporation, having an address at 0
Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, as lender under that
certain Loan Agreement dated as of the date hereof (as the same may amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement") among the borrowers and guarantors that are a party thereto (each, a
"Borrower" and together, the "Borrowers"), and Xxxxxx (Xxxxxx, individually and
as agent for one or more Co-Lenders, together with any and all successors and
assigns, hereinafter referred to as "Lender").
RECITALS
A. Pursuant to the terms of the Loan Agreement, as a condition to the
making of the Loan in the principal amount of $265,000,000.00 pursuant to the
terms of the Loan Agreement to the Borrowers by Lender, the Guarantors are
required to guarantee the payment of the Loan to the Lender, as set forth
herein.
B. Lodgian is the owner of 100% of all issued and outstanding shares of
Servico, and Servico is the direct or indirect owner of 100% of all issued and
outstanding shares of each Borrower that is a corporation, and is the direct or
indirect owner of 100% of all partnership interests in each Borrower that is a
partnership except for Servico Centre Associates, Ltd., in which Servico owns,
directly or indirectly, 100% of the general partnership interests therein.
C. The Guarantors will derive substantial benefit from the Lender's making
of the Loan to the Borrowers and the extension to the Borrowers of the credit
provided under the Loan Agreement.
NOW, THEREFORE, in order to induce the Lender to execute the Loan
Agreement, close and fund the Loan, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, the Guarantors, jointly and severally, hereby
represent, warrant, covenant and agree as follows:
1. Definitions and Construction. The following terms, as used in this
Guaranty, shall have the following meanings:
(a) Definitions.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Assets" of any Person means all assets of such Person that would, in
accordance with GAAP, be classified as assets of a company conducting a business
the same as or similar to that of such Person, including, without limitation,
all real property and personal property, Capital Stock, and, with respect to the
Borrower, the Properties.
"Asset Sale" shall mean any Disposition of Assets or series of related
Dispositions of Assets which yields gross proceeds to any Guarantor, any
Borrower or any of their respective Subsidiaries or any other entity which any
Guarantor or Subsidiary thereof owns an interest (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of $50,000.00.
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978, as
amended, 11 U.S.C. Sections 101 et seq., and the regulations adopted and
promulgated pursuant thereto.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrower" and "Borrowers" shall have the meaning set forth in the
preamble to this Guaranty.
"Capital Expenditures" shall mean, for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing (pursuant to a capital lease) of fixed or capital
assets or additions to equipment (including replacements, capitalized repairs
and improvements during such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and, for the purposes of this Guaranty, the amount of such obligations at any
time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase any of
the foregoing. "Cash Equivalents" shall mean (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of six months or less from
the date of acquisition issued by any Lender or by any commercial bank organized
under the laws of the United States of America or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial paper
of an issuer rated at least A-2 by Standard & Poor's Ratings Services ("S&P") or
P-2 by Xxxxx'x Investors Service, Inc. ("Moody's"), or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
commercial bank satisfying the requirements of clause (b) of this definition; or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
"Closing Date" shall mean the date hereof.
"Collateral" shall mean the Properties and the shares and partnership
interests pledged pursuant to and described in the Pledge Agreement.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Bankruptcy Code.
"Consolidated EBITDA" shall mean, with respect to any Person, for any
period, Consolidated Net Income for such period plus, without duplication and to
the extent reflected as a charge in the statement of such Consolidated Net
Income for such
period, the sum of (a) income tax expense, (b) Consolidated Interest Expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including the Loans), (c) depreciation and amortization expense, (d)
amortization of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary, unusual or non-recurring expenses or
losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business) and (f) any other non-cash
charges, and minus, to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (a) interest income (except to the extent
deducted in determining Consolidated Interest Expense), (b) any extraordinary,
unusual or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, gains on the sales of assets outside of the ordinary course of
business) and (c) any other non-cash income, all as determined on a consolidated
basis.
"Consolidated Fixed Charge Coverage Ratio" shall mean, with respect to
any Person, for the twelve (12) month period immediately preceding the date of
calculation, the ratio of (a) Consolidated EBITDA for such period (calculated on
a pro forma basis acceptable to Lender for properties owned by such Person for
less than twelve (12) months at the time of calculation), including minimum
management fees equal to 4% of gross income of each property owned by such
Person, minimum FF&E reserves of 5% of gross income of each property owned by
such Person and minimum franchisee fees of 4% of gross room revenues (exclusive
of the franchisee's share of the cost of registration and advertising systems)
of each hospitality property owned by such Person, to (b) Consolidated Fixed
Charges for such period, provided that if the date of calculation is less than
twelve (12) months from the date hereof, Consolidated Fixed Charges shall be
calculated on an annualized basis on the basis of the period from the date
hereof to the date of calculation.
"Consolidated Fixed Charges" shall mean, with respect to any Person,
for any period, the sum (without duplication) of (a) Consolidated Interest
Expense for such period, (b) provision for cash income taxes made by such Person
on a consolidated basis in respect of such period, (c) dividends on preferred
stock of such Person and (d) scheduled payments made during such period on
account of principal of Indebtedness of such Person or any of its Subsidiaries
(including scheduled principal payments in respect of the Loan) but excluding a
scheduled payment of principal which is payable in a single installment at the
final maturity of such Indebtedness.
"Consolidated Interest Coverage Ratio" shall mean, with respect to any
Person, for the twelve (12) month period immediately preceding the date of
calculation, the ratio of (a) Consolidated EBITDA for such period (calculated on
a pro forma basis acceptable to Lender for properties owned by such Person for
less than twelve (12) months at the time of calculation), minus minimum
management fees equal to 4% of gross income of each property owned by such
Person, minimum FF&E reserves of 5% of gross income of each property owned by
such Person and minimum franchisee fees of 4% of gross room revenues (exclusive
of the franchisee's share of the cost of registration and advertising
systems) of each hospitality property owned by such Person, to (b) Consolidated
Interest Expense for such period, provided that if the date of calculation is
less than twelve (12) months from the date hereof, Consolidated Interest Expense
shall be calculated on an annualized basis on the basis of the period from the
date hereof to the date of calculation.
"Consolidated Interest Expense" shall mean, with respect to any
Person, for any period, total interest expense (including that attributable to
Capital Lease Obligations and all accrued interest on construction financing
during the related construction period) of such Person and its Subsidiaries for
such period with respect to all outstanding Indebtedness of such Person and its
Subsidiaries (including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Hedge Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP, but excluding Exit Fees, as provided in the Note, commitment fees and
the amortization of deferred loan costs in connection with mortgage loans which
are treated as an interest expense under GAAP).
"Consolidated Lease Expense" shall mean, with respect to any Person,
for any period, the aggregate amount of fixed and contingent rentals payable by
such Person and its Subsidiaries determined on a consolidated basis in
accordance with GAAP, for such period with respect to leases of real and
personal property; provided, that payments in respect of Capital Lease
Obligations shall not constitute Consolidated Lease Expense.
"Consolidated Leverage Ratio" for any Person shall mean the ratio of
(a) the Consolidated Total Debt of such Person at the time of calculation to (b)
Consolidated EBITDA for such period (calculated on a pro forma basis acceptable
to Lender for properties owned for less than twelve (12) months at the time of
calculation) of each property owned by such Person.
"Consolidated Net Income" shall mean, with respect to any Person, for
any period, the consolidated net income (or loss) of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any other
Person accrued prior to the date it becomes a Subsidiary of such Person or is
merged into or consolidated with such Person or any of its Subsidiaries, (b) the
income (or deficit) of any other Person (other than a Subsidiary of such Person)
in which such Person or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by such Person or
such Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Net Worth" shall mean, with respect to any Person, at
any date, all amounts which would, in conformity with GAAP, be included on a
consolidated
balance sheet of such Person and its Subsidiaries under stockholders' equity at
such date, plus 75% of retained earnings and 75% of the net proceeds (after
payment of underwriting and placement fees and other expenses directly related
to such equity offerings) received from all subsequent equity offerings of such
Person.
"Consolidated Total Debt": shall mean, for any Person at any date, the
aggregate principal amount of all Indebtedness of such Person and its
Subsidiaries at such date, determined on a consolidated basis in accordance with
GAAP; provided, however, that with respect to Lodgian, the Crests shall be
excluded from the calculation of Consolidated Total Debt.
"Contractual Obligation" shall mean, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"CRESTS" shall mean those certain 7% Convertible Junior Subordinated
Debentures due 2010 (the "Subordinated Debentures") in the amount of
$175,000,000.00 issued by Servico in June, 1998, together with the Convertible
Redeemable Equity Structured Trust Securities issued by Lodgian Capital Trust I
on June 17, 1998, which evidence an ownership interest in the Subordinated
Debentures.
"Dedham Construction Loan" shall mean the $5,575,000 construction loan
previously made by BankBoston, N.A. to the Dedham Subsidiary relating to the
Residence Inn located in Dedham, Massachusetts.
"Dedham Subsidiary" shall mean Dedham Lodging Associates I, Limited
Partnership, a Georgia limited partnership and a Subsidiary of Impac.
"Default" shall mean any event, act or condition which shall have
occurred and which, with the giving of notice of lapse of time, or both, would
constitute an Event of Default.
"Disposition" shall mean, with respect to any Asset, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof; the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Environmental Permits" shall mean any and all permits, licenses,
approvals, registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"European Joint Venture" shall mean SLB Holdings, L.P., a Delaware
limited partnership, as more fully described on Schedule 4(q).
"Event of Default" shall mean the occurrence of any of the following:
(a) the failure of any Guarantor to pay any of the Guaranteed
Obligations or any other amount payable under this Guaranty on demand; or
(b) if any representation or warranty made or deemed made by any
Guarantor in this Guaranty or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with this Guaranty shall prove to have been inaccurate in any material respect
on or as of the date made or deemed made; or
(c) any default in the observance or performance of any covenant or
agreement contained in this Guaranty (other than as provided in paragraphs (a),
(b) and (d) through (h) of this definition), and such default shall continue
unremedied for a period of (i) 10 days with respect to covenants and agreements
contained in Section 7(d)(i), 7(g)(i), (iii) and (iv) and Section 8, and (ii) 30
days with respect to other covenants and agreements contained herein; or
(d) if any Guarantor, any Borrower or any of their respective
Subsidiaries shall (i) default in making any payment of any principal of any
Indebtedness (including, without limitation, any Guarantee Obligation, but
excluding the Loans) on the scheduled or original due date with respect thereto
and such default is not cured within any applicable grace or cure period; or
(ii) default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i), (ii) or
(iii) of this paragraph (d) with respect to Non-Recourse Indebtedness shall not
at any time constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i), (ii) and
(iii) of this paragraph (d) shall have occurred and be continuing with respect
to such Non-Recourse Indebtedness the outstanding principal amount of which
exceeds in the aggregate $5,000,000.00 and provided further that a default,
event or condition described in clause (i), (ii) or (iii) of this paragraph (d)
with respect to Recourse Indebtedness which is not Recourse Financing and the
payment of which is subject to a bona fide dispute, shall not at any time
constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (d) shall have occurred and be continuing with respect to such
Recourse Indebtedness the outstanding principal amount of which exceeds in the
aggregate $1,000,000.00; and provided further that if any default, event or
condition of the type
described in clauses (i), (ii) or (iii) of this paragraph (d) has been
unconditionally waived, in writing, it shall not be an Event of Default; or
(e) if (i) any Guarantor, any Borrower or any of their respective
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Guarantor, any Borrower or any of their
respective Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Guarantor, any Borrower
or any of their respective Subsidiaries any case, proceeding or other action of
a nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 90 days; or (iii) there
shall be commenced against any Guarantor, any Borrower or any of their
respective Subsidiaries any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 90 days from the entry thereof; or (iv) any
Guarantor, any Borrower or any of their respective Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) any Guarantor, any Borrower or any of their respective Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(f) if any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan
with respect to which no statutory or regulatory exemption exists and applies to
such transaction, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Guarantor, any Borrower or any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, (v) any Guarantor, any Borrower or any Commonly Controlled
Entity shall, or in the reasonable opinion of the Lender is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could, in the sole judgment of the Lender, reasonably be
expected to have a Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against any
Guarantor, any Borrower or any of their respective Subsidiaries involving for
the Guarantors, the Borrowers or their respective Subsidiaries taken as a whole
a liability (not paid or fully covered by insurance as to which the relevant
insurance company has acknowledged coverage) of $5,000,000.00 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(h) an "Event of Default" as defined in the Loan Agreement.
"FIRREA" shall mean the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended from time to time.
"Franchise Agreement" shall mean with respect to any Guarantor, any
Borrower or their respective Subsidiaries, a management agreement, franchise
agreement or similar agreement pursuant to which such Person has the right to
operate a hotel located on each real property Asset under a brand name and/or
hotel system.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time, except that for
purposes of Section 8(a), GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used in the
preparation of the most recent audited financial statements delivered pursuant
to Section 4(g).
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation" shall mean, as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Asset constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Assets, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"Guaranteed Obligations" shall have the meaning set forth in paragraph
2(a) below.
"Guarantor" and "Guarantors" shall have the meaning set forth in the
preamble to this Guaranty.
"Guaranty" shall mean this Guaranty.
"Hedge Agreements" shall mean, with respect to any Person, all
interest rate swaps, caps or collar agreements or similar arrangements entered
into by such Person providing for protection against fluctuations in interest
rates or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Impac" shall mean Impac Hotel Group, LLC, a Georgia limited liability
company, a Wholly-Owned Subsidiary of Lodgian.
"Impac I" shall mean Impac Hotels I, L.L.C., a Georgia limited
liability company and a Subsidiary of Impac.
"Impac I Lender" shall mean Nomura Depositor Trust ST I, Commercial
Mortgage Pass-through Certificates, Series 1998-ST I, acting through LaSalle
National Bank, as Trustee, as assignee of Nomura Asset Capital Corporation,
together with its successors and assigns.
"Impac I Loan" shall mean the $132,459,000.00 mortgage loan made by
the Impac I Lender to Impac I pursuant to the Impac I Loan Agreement.
"Impac I Loan Agreement" shall mean that certain Loan Agreement dated
as of March 12, 1997, by and between Impac I and the Impac I Lender, as amended,
extended, renewed or restated from time to time.
"Impac II" shall mean Impac Hotels II, L.L.C., a Georgia limited
liability company and a Subsidiary of Impac.
"Impac II Lender" shall mean The Capital Company of America LLC, as
assignee of Nomura Asset Capital Corporation, together with its successors and
assigns.
"Impac II Loan" shall mean the mortgage loan facility in the maximum
principal amount of $163,500,000.00 from the Impac II Lender to Impac II
pursuant to the Impac II Loan Agreement.
"Impac II Loan Agreement" shall mean that certain Loan Agreement dated
as of March 12, 1997, by and between Impac II and the Impac II Lender, as
amended, extended, renewed or restated from time to time.
"Impac III" shall mean Impac Hotels III, L.L.C., a Georgia limited
liability company and a Subsidiary of Impac.
"Impac III Lender" shall mean The Capital Company of America LLC, as
assignee of Nomura Asset Capital Corporation, together with its successors and
assigns.
"Impac III Loan" shall mean the mortgage loan facility in the maximum
principal amount of $100,000,000.00 from the Impac III Lender to Impac III
pursuant to the Impac III Loan Agreement.
"Impac III Loan Agreement" shall mean that certain Loan Agreement
dated as of October 29, 1997, by and between Impac III and the Impac III Lender,
as amended, extended, renewed or restated from time to time.
"Impac Loans" shall mean the Impac I Loan, the Impac II Loan and the
Impac III Loans, or any of them.
"Impac Loan Agreements" shall mean the Impac I Loan Agreement, the
Impac II Loan Agreement and the Impac III Loan Agreement.
"Impac Loan Documents" shall mean the documents, instruments, and
agreements from time to time evidencing, guaranteeing and securing the Impac
Loans, or any of them.
"Impac Affiliated Companies" shall mean those Wholly-Owned
Subsidiaries of Lodgian identified on Exhibit 4(q).
"Indebtedness" shall mean of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property, Assets
or services (other than trade payables incurred in the ordinary course of such
Person's business, provided that such trade payables are paid within 60 days of
the date they are incurred), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to Assets or property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
Asset or property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party under
acceptance, letter of credit or similar facilities, (g) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above; (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on any property or Asset (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, (j) all obligations of such
Person in respect of Hedge Agreements, and (k) the liquidation value of any
preferred Capital Stock of such Person or its Subsidiaries held by any Person
other than such Person and its Wholly Owned Subsidiaries.
"Indemnified Liabilities" shall have the meaning set forth in Section
15.
"Indemnitee" shall have the meaning set forth in Section 15.
"Insolvency" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent" shall mean a condition of Insolvency.
"Intellectual Property" shall mean the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents, patent
licenses, trademarks, trademark licenses, technology, know-how and processes,
and all rights to xxx at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.
"Joint Venture" shall mean any joint venture, corporation,
partnership, limited liability company or other business entity (a) in which any
Guarantor or any of their Subsidiaries (other than the Borrowers) owns directly
or indirectly a percentage ownership interest of less than 50%, (b) which is not
a Subsidiary or Affiliate of any Guarantor, (c) which owns a hotel or hotels,
and (d) which does not own any other Asset or type of Asset.
"Lender" shall have the meaning set forth in the preamble to this
Guaranty.
"Liabilities" shall have the meaning set forth in Section 2(a).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).
"Loan Agreement" shall have the meaning set forth in the preamble to
this Guaranty.
"Little Rock Construction Loan" shall mean the $5,680,406.00
construction loan previously made by Bank One, Louisiana, N.A. to the Little
Rock Subsidiary relating to the Residence Inn located in Little Rock, Arkansas.
"Little Rock Subsidiary" shall mean Little Rock Lodging Associates I,
Limited Partnership, a Georgia limited partnership and a Subsidiary of Impac.
"Loan Documents" shall have the meaning set forth in the Loan
Agreement, including without limitations, the Pledge Agreements.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, property, condition (financial or otherwise) or prospects
of the Guarantors, the Borrowers and their respective Subsidiaries taken as a
whole or (b) the validity or enforceability of this Guaranty or any of the other
Loan Documents or the rights or remedies of the Lender hereunder or thereunder.
"Material Environmental Amount" shall mean an amount or amounts
payable by any Person and/or any of its Subsidiaries not covered by insurance,
in the aggregate in excess of $1,000,000.00, for: costs to comply with any
Environmental Law; costs of any investigation, and any remediation, of any
Material of Environmental Concern; and compensatory damages (including, without
limitation damages to natural resources), punitive damages, fines, and penalties
pursuant to any Environmental Law.
"Materials of Environmental Concern" shall mean any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity, and any other substances or forces of any kind
defined as hazardous or toxic under any Environmental Law, that is regulated
pursuant to or could give rise to liability under any Environmental Law.
"Merger" shall mean the transaction described in that certain Amended
and Restated Agreement and Plan of Merger (the "Merger Agreement") among
Lodgian, Servico and Impac dated July 22, 1998 and further amended on September
16, 1998.
"Multiemployer Plan" shall mean a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) in connection with any Asset Sale
or any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset which is the
subject of such Asset Sale or Recovery Event (other than any Lien pursuant to
the Loan Documents), distributions to Unaffiliated Third Party Equity Owners
that hold an equity interest in the entity which owns such Asset, provided that
such distributions are mandatory under the organizational documents of such
entity and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (b) in connection with any
issuance or sale of equity securities or debt securities or instruments or the
incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
"Non-Recourse Indebtedness" of any Person shall mean all Indebtedness
of such Person and its Subsidiaries with respect to which recourse for payment
is limited to specific assets encumbered by a Lien securing such Indebtedness;
provided, however, that personal recourse of a holder of Indebtedness against
any obligor with respect thereto for fraud, misrepresentation, misapplication of
cash, waste and other circumstances customarily excluded from non-recourse
provisions in non-recourse secured financing of real estate shall not, by
itself, prevent any Indebtedness from being characterized as Non-Recourse
Indebtedness, provided further that if a personal recourse claim is made in
connection therewith, such claim shall not constitute Non-Recourse Indebtedness
for the purposes of this Guaranty.
"Non-Wholly-Owned Subsidiary" shall mean any Subsidiary of a Person
that is not a Wholly-Owned Subsidiary of such Person.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Financing" shall mean leases, licenses or financing
arrangements which contain commercially prudent terms and conditions, with
respect to microwaves, dish and glass washing machines, vans, phone systems,
refrigerators, televisions, washers, dryers, cubers, dispensers, door locks, air
conditioners, filter systems, impressers, ironers or computer systems ("Leased
Equipment") which are readily replaceable without material interference or
interruption to the operation of the related Asset, and for which aggregate
annual lease payments, license fees and debt service is less than $50,000.00
per annum or, with respect to the hospitality Assets listed on Schedule 1, the
dollar amount per annum set forth on such Schedule for such Asset) for each
hospitality property owned or leased by any Guarantor, any Borrower or their
related Subsidiaries, provided that such Permitted Financing is a Lien only on
the related Leased Equipment, including without limitation, the Permitted FF&E
Financing. For each real property owned or leased by any Guarantor, any Borrower
or their related Subsidiaries, and such amount is an aggregate limit for that
real property on all leasing, licensing or financing by any Guarantor, any
Borrower or their related Subsidiaries.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" shall mean, at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pledge Agreement" shall mean that certain pledge agreement dated the
date hereof and given by the Guarantors to Lender, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Purchase Right" shall mean the right of an Unaffiliated Third Party
Equity Owner of a Subsidiary of any Guarantor, or Borrower or of an entity in
which any Guarantor, any Borrower or any Subsidiary owns an interest, to require
the other owners of interests in said Subsidiary or other entity to sell their
interests in such Subsidiary or other entity to such Unaffiliated Third Party
Equity Owner upon the occurrence of certain specified events pursuant to the
terms of the organizational documents of such Subsidiary or other entity.
"Recourse Indebtedness" of any Person means all Indebtedness of such
Person and its Subsidiaries for which recourse for payment may be made against
such Person for the obligations secured thereunder including without limitation,
the entire amount of the Recourse Indebtedness of any Joint Venture which such
Person may own an interest in regardless of such Person's percentage ownership
in such Joint Venture.
"Recourse Financing" of any Person means all Recourse Indebtedness of
such Person which (i) is listed on Schedule 8(b(iii), (ii) is evidenced by a
note, bond, indenture, guarantee, surety agreement, reimbursement agreement, or
indemnity or is related to a loan or borrowed money, (iii) is a Capital Lease
Obligation or (iv) is Permitted Financing.
"Recovery Event" shall mean any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any Asset of the Guarantors, the Borrowers or any of their respective
Subsidiaries.
"Regulation U" shall mean Regulation U of the Board as in effect from
time to time.
"Reorganization" shall mean, with respect to any Multiemployer Plan,
the condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. ss. 4043.
"Requirement of Law" shall mean, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" shall mean the chief executive officer,
president or chief financial officer of the Borrower, but in any event, with
respect to financial matters, the chief financial officer of Lodgian.
"SEC" shall mean the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Servico's Cash Management System" shall mean the "Cash Management
System" as defined in the Loan Agreement.
"Single Employer Plan" shall mean any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan.
"Solvent": shall mean, when used with respect to any Person, that as
of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means an uninsured liability on a
"claim", and (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
"Subsidiary" shall mean, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of (a) Servico and (b) Lodgian.
"Unaffiliated Third Party Equity Owner" shall mean a Person (a) which
owns, directly, an equity interest in a Subsidiary of any Guarantor, or in an
entity in which any Guarantor or any Subsidiary thereof owns any interest, and
(b) if such Person is not an individual, in which no Guarantor, no Borrower, and
no Subsidiary or Affiliate of any Guarantor or Borrower owns, directly or
indirectly, any interest, and (c) if such Person is an individual, such
individual does not own any interest, directly or indirectly, in any Guarantor
or any other Subsidiary or any Borrower.
"Wholly Owned Subsidiary" shall mean, as to any other Person, all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
All capitalized terms used in this Guaranty and not otherwise defined in
this Section 1 shall have the meaning set forth in the Loan Agreement.
(b) Construction.
(i) Unless the context of this Guaranty clearly requires
otherwise, references to the plural include the singular and to the singular
include the plural, the part includes the whole, the terms "include" and
"including" are not limiting, and the term "or" has, except where otherwise
indicated, the inclusive meaning represented by the phrase "and/or." The words
"hereof," "herein," "hereby," "hereunder," and other similar terms in this
Guaranty refer to this Guaranty as a whole and not exclusively to any particular
provision of this Guaranty. Article, section, subsection, exhibit, and schedule
references refer to this Guaranty unless otherwise specified. All of the
exhibits and schedules attached to this Guaranty shall be deemed incorporated
into this Guaranty by reference.
(ii) Any reference in this Guaranty to any of the following
documents includes any and all alterations, amendments, extensions,
modifications, renewals, or supplements thereto or thereof, as applicable: this
Guaranty, the Loan Agreement, the Pledge Agreements and the other Loan
Documents.
(iii) Neither this Guaranty nor any uncertainty or ambiguity
contained herein shall be construed or interpreted against the Lender or the
Guarantors by virtue of such party's having drafted the same. Rather, this
Guaranty has been reviewed by each of the Guarantors and the Lender and their
respective counsel and shall be construed and interpreted according to the
ordinary meaning of the words used so as to accomplish fairly the purposes and
intentions of both such parties.
(iv) No course of dealing, course of performance, trade usage or
parol evidence of any nature shall be used to supplement or modify any term or
condition of this Guaranty.
(v) Any notice, certificate or other document required by the
terms of this Guaranty to be executed by an officer of any Guarantor, shall be
executed by such officer in his or her capacity as such, solely on behalf of the
respective Guarantor and not in his or her individual capacity.
2. Guaranty.
(a) Unconditional Guaranty. The Guarantors jointly and severally,
hereby irrevocably, absolutely and unconditionally guarantee (i) to the Lender,
the prompt and complete payment when due (whether at stated maturity, by
acceleration or otherwise) of all of the indebtedness owing by the Borrowers to
the Lender evidenced by the Note, all obligations under, and the due and prompt
performance of all of, the terms, agreements, covenants and conditions of the
Loan Documents (collectively, the "Liabilities"), and (ii) to the Lender, the
prompt payment of all expenses, including reasonable attorneys' fees, and costs
reasonably incurred by the Lender in connection with the collection of the
Liabilities or the enforcement of the Note or any Loan Documents. The term
"indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts and other monetary obligations and liabilities
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined including interest (including any
interest accruing after the commencement of any proceeding by or against the
Borrowers under the Bankruptcy Code, or any other similar law, and any other
interest that would have accrued but for the commencement of such proceeding,
whether or not any such interest is allowed as a claim enforceable against the
Borrowers in such proceeding) required under the applicable Note, and whether
recovery upon such indebtedness and obligations may be or hereafter become
unenforceable against the Borrowers or any debtor-in-possession or trustee under
the Bankruptcy Code or other applicable law. (The Liabilities and all other
expenses and costs to be paid by the Guarantor pursuant to this Guaranty shall
hereinafter be collectively referred to as the "Guaranteed Obligations.") This
Guaranty is an absolute guaranty of payment and performance and not a guaranty
of collection.
(b) Joint and Several Liability. The Guarantors and any other Person
who, in addition to the Guarantors, shall guarantee the payment of all or any
part of the Liabilities or shall guarantee the performance of any other
Guaranteed Obligation, and their respective successors and assigns shall be
jointly and severally bound by the terms of
this Guaranty and such other guaranty with respect to such guarantied
Liabilities or Guaranteed Obligations, notwithstanding any relationship or
contract of co-obligation by or among such guarantors. The enforcement of the
Guaranteed Obligations by the Lender is not conditioned upon the Lender
obtaining from any other Person a guaranty of all or any part of the Liabilities
or Guaranteed Obligations, any security or any other accomplishment, event or
matter, including, without limitation, the prior collection, from the Borrowers
or any other Person, of any portion of the indebtedness owing from the Borrowers
to the Lender under the Note, the Loan Agreement or any other Loan Documents.
(c) Separate Obligations. The obligations of the Guarantors arising
hereunder are independent of and separate from any and all obligations of the
Borrowers to the Lender, or to any other Person arising under any and all other
Loan Documents executed by the Guarantors and delivered to the Lender. A
separate action or actions may be brought against the Guarantors in respect of
this Guaranty, whether or not the Borrowers or any other party is joined therein
or a separate action or actions are brought against the Borrowers or any other
party. All of the rights and remedies of the Lender are cumulative and not
exclusive, and the rights of the Lender provided by each Loan Document shall
continue without impairment, reduction or excuse on account of the execution and
delivery of this Guaranty. Payments by the Guarantors hereunder may be required
by the Lender on any number of occasions.
(d) Guaranty Absolute. Each Guarantor guaranties that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Agreement, the Note and the other Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Lender with respect thereto. The liability of
each Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of any provision of
any other Loan Document or any other agreement or instrument relating to
any Loan Document, or avoidance or subordination of any of the Guaranteed
Obligations;
(ii) any change in the time, manner or place of payment of, or in
any other term of, or any increase in the amount of, all or any of the
Guaranteed Obligations, or any other amendment or waiver of any term of, or
any consent to departure from any requirement of, the Loan Agreement, the
Note or any of the other Loan Documents;
(iii) any release or amendment or waiver of any term of any other
guaranty of, or any consent to departure from any requirement of any other
guaranty of, all or any of the Guaranteed Obligations;
(iv) the absence of any attempt to collect any of the Guarantied
Obligations from the Borrowers or from any Guarantor or from any other
guarantor or any other action to enforce the same or the election of any
remedy by any of the
Lender;
(v) any waiver, consent, extension, forbearance or granting of
any indulgence by the Lender with respect to any provision of any other
Loan Document;
(vi) the election by the Lender in any proceeding under chapter
11 of the Bankruptcy Code, or the application of section 1111(b)(2) of the
Bankruptcy Code;
(vii) any borrowing or grant of a security interest by the
Borrowers, as debtor-in-possession, under section 364 of the Bankruptcy
Code; (viii) the disallowance, under section 502 of the Bankruptcy Code, of
all or any portion of the claims of any of the Lender for payment of any of
the Guarantied Obligations; or
(ix) any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a Borrower or a Guarantor.
(e) Security. This Guaranty is secured by the Pledge Agreement.
3. Payments. All payments to be made by the Guarantors to the Lender
hereunder shall be made in lawful money of the United States of America, in
immediately available funds, before 1:00 p.m. New York time, on the date due.
The Lender shall apply any payment by or recovery from the Guarantors hereunder
(including any of the Guarantors' security or assets so paid or recovered) to
any Guaranteed Obligation in any order, priority or manner which the Lender may
elect from time to time.
4. Representations and Warranties. Each Guarantor hereby represents and
warrants to the Lender that as of the date hereof:
a. Corporate Existence; Compliance with Law Each Guarantor is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of its organization; (ii) is duly qualified as a foreign (if
applicable) corporation, and in good standing under the laws of each
jurisdiction where such Guarantor owns or operates property, except for failures
which in the aggregate would have no Material Adverse Effect; (iii) has all
requisite corporate, power and authority and the legal right to own, and pledge,
its assets, and to conduct its business as now or currently proposed to be
conducted; (iv) is in compliance with its certificate of incorporation and
by-laws; (v) is in compliance with all other applicable Requirements of Law
except for such noncompliance which in the aggregate would have no Material
Adverse Effect; and (vi) has all necessary licenses, permits, consents or
approvals from or by, has made all necessary filings with, and has given all
necessary notices to, each Governmental Authority having jurisdiction, to the
extent required for such ownership, operation and conduct, except for licenses,
permits, consents or approvals which can be obtained by the taking of
ministerial action to secure the grant or transfer thereof or failures which in
the aggregate would have no Material Adverse Effect.
b. Corporate Power; Authorization; No Legal Bar The execution,
delivery and performance by each Guarantor of this Guaranty and the other Loan
Documents to which it is a party:
(i) are within its corporate power;
(ii) have been duly authorized by all necessary corporate action,
including, without limitation, the consent of directors, where required;
and
(iii) do not and will not (A) contravene its certificate of
incorporation or by-laws,(B) violate any other applicable Requirement of
Law (including, without limitation, Regulations G, T, O and X of the Board
of Governors of the Federal Reserve System), or any order or decree of any
Governmental Authority or arbitrator, (C) conflict with or result in the
breach of, or constitute a default under, or result in or permit the
termination or acceleration of, any of its material Contractual
Obligations, (D) result in the creation or imposition of any Lien upon any
of its property (other than pursuant to the Pledge Agreement), or (E)
require the consent, authorization by, or approval of, or notice to, or
filing or registration with, any Governmental Authority or any other
Person.
c. Enforceable Obligations This Guaranty has been duly executed and
delivered by each Guarantor and is the legal, valid and binding obligation of
each Guarantor enforceable against it in accordance with its terms except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting the
enforcement of creditor's rights and remedies generally and to general
principles of equity.
d. No Material Litigation There are no pending or, to the knowledge of
each Guarantor, threatened actions, investigations or proceeding affecting any
Guarantor or any of its subsidiaries before any Governmental Authority or
arbitrator other than those that in the aggregate, if adversely determined,
would have no Material Adverse Effect. The performance by each Guarantor under
this Guaranty and under each of the other Loan Documents to which it is a party
is not restrained or enjoined (either temporarily, preliminarily or permanently)
and no conditions have been imposed by any Governmental Authority or arbitrator
that in the aggregate would have a Material Adverse Effect.
e. No Offset. The Guarantors' obligations hereunder are not subject to
any offset, excuse, claim or defense of the Guarantors against the Lender of any
kind.
f. Solvency. After giving effect to the incurrence of the Guarantors'
obligations under this Guaranty, each Guarantor, each Borrower and each
Subsidiary of each Guarantor (other than Saginaw Hospitality L.P. and Macon
Hotel Associates, L.L.C.).
g. Financial Condition. (i) The unaudited pro forma consolidated
balance sheet of Lodgian and its consolidated Subsidiaries as of June 30, 1998
(including
the notes thereto) (the "Pro Forma Balance Sheet"), copies of which have
heretofore been furnished to Lender, has been prepared giving effect (as if such
events had occurred on such date) to (A) the consummation of the Merger, (B) the
Loan to be made and the use of proceeds thereof and (C) the payment of fees and
expenses in connection with the foregoing. The Pro Forma Balance Sheet has been
prepared based on the best information available to Lodgian and Servico as of
the date of delivery thereof, and presents fairly on a pro forma basis the
estimated financial position of each of Lodgian and its consolidated
Subsidiaries as of June 30, 1998, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(ii) The audited consolidated balance sheets of Lodgian and Servico,
each as of April 30, 1998 and December 30, 1997, respectively, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Ernst & Young, present fairly the consolidated financial condition of Lodgian
and Servico as of such date, and the consolidated results of their operations
and their consolidated cash flows for the respective fiscal years then ended.
The unaudited consolidated balance sheet of Servico, as of September 30, 1998,
and the related unaudited consolidated statements of income and cash flows for
the 9-month period ended on such date, present fairly the consolidated financial
condition of Servico as of such date, and the consolidated results of its
operations and its consolidated cash flows for the 9-month period then ended
(subject to normal year-end audit adjustments).
(ii) All financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). No Guarantor, Borrower or Subsidiary of
any of the foregoing has any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including, without limitation, any interest
rate or foreign currency swap or exchange transaction or other obligation in
respect of derivatives, which are not reflected in the most recent financial
statements referred to in this Section 4(g) or listed on Schedule 8(b)(iii),
except for the European Joint Venture. During the period from September 30, 1998
to and including the date hereof there has been no Disposition by any Guarantor
of any material part of its business or property.
h. No Change. Since September 30, 1998 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
i. No Default. No Guarantor, Borrower nor any Subsidiary of any of the
foregoing is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
j. Ownership of Assets; Liens. Each Guarantor, each Borrower and each
Subsidiary of each of the foregoing has title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other Assets, and
none of such Assets is subject to any Lien except as permitted by Section 8(c).
k. Intellectual Property. Each Guarantor, each Borrower and each of
their respective Subsidiaries owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently conducted. No
material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does any Guarantor or any
Borrower know of any valid basis for any such claim. To the Guarantor's
knowledge, the use of Intellectual Property by the Guarantors, the Borrowers and
their respective Subsidiaries does not infringe on the rights of any Person in
any material respect.
l. Taxes. Each Guarantor, each Borrower and each of their respective
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns which are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Guarantors, the Borrowers or their respective
Subsidiaries, as the case may be); no tax Lien has been filed, (except for a
vacant parcel of land of approximately one acre located in Tyler, Texas) and, to
the knowledge of the Guarantors and the Borrowers, no claim is being asserted,
with respect to any such tax, fee or other charge.
m. Federal Regulations. No part of the proceeds of the Loan, or any
other loans, will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U as
now and from time to time hereafter in effect or for any purpose which violates
the provisions of the Regulations of the Board. If requested by the Lender, the
Guarantors will furnish to the Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
Regulation U.
n. Labor Matters. There are no strikes or other labor disputes against
any Guarantor, any Borrower or any of their respective Subsidiaries pending or,
to the knowledge of the Guarantors or the Borrowers, threatened that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. Hours worked by and payment made to employees of the
Guarantors, any Borrower and their respective Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Guarantors, the Borrowers or any of their respective Subsidiaries on account
of employee health and welfare insurance that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect if not paid have
been paid or accrued as a liability on the books of the Guarantors, the
Borrowers or the relevant Subsidiary.
o. ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal
Revenue Code or Section 302 of ERISA) has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Bankruptcy Code. No termination of a
Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material amount. No
Guarantor, Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan which has resulted or could
reasonably be expected to result in a material liability under ERISA, and no
Guarantor, Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if any Guarantor, any Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
p. Investment Company Act; Other Regulations. No Guarantor, Borrower
nor any of their respective Subsidiaries is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. No Guarantor, Borrower nor any of
their respective Subsidiaries is subject to regulation under any Requirement of
Law (other than Regulation X of the Board) which limits its ability to incur
Indebtedness.
q. Subsidiaries. The Subsidiaries and other entities listed on
Schedule 4(q) constitute all the Subsidiaries of the Guarantors (including,
without limitation, the Borrowers) and all of the other entities in which the
Guarantors, directly or indirectly, owns any interest, as of the date hereof,
Schedule 4(q) sets forth as of the Closing Date the name and jurisdiction of
incorporation of each Borrower and Subsidiary and such other entities and, as to
each such Borrower and Subsidiary and such other entity, the percentage of each
class of Capital Stock owned by the Guarantors and any other Person. There are
no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees or
directors and directors' qualifying shares) of any nature relating to any
Capital Stock of the Guarantors, the Borrowers or any Subsidiary of any of the
foregoing or of any other such entity other than CRESTS and the Purchase Rights
of Unaffiliated Third Party Equity Owners described on Schedule 2.
r. Accuracy of Information, etc. No statement or information contained
in this Guaranty, any other Loan Document or any other document, certificate or
statement furnished to the Lender by or on behalf of any Guarantor, any Borrower
or their respective Subsidiaries for use in connection with the transactions
contemplated by this Guaranty or the other Loan Documents, contained, as of the
date such statement, information, document or certificate was so furnished, any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which it was made.
The projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Guarantors to be reasonable at the time made, it being
recognized by the Lender that such financial information as it relates to future
events is not to be viewed as fact and that actual results during the period or
periods covered by such financial information may differ from the projected
results set forth therein by a material amount. As of the date hereof, the
representations and warranties contained in the Merger Agreement are true and
correct in all material respects. There is no fact known to any Guarantor, any
Borrower or their respective Subsidiaries that could reasonably be expected to
have a Material Adverse Effect that has not been expressly disclosed herein, in
the other Loan Documents or in any other documents, certificates and statements
furnished to the Lender for use in connection with the transactions contemplated
hereby and by the other Loan Documents.
s. Year 2000 Matters. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Guarantors', the
Borrowers' and their respective Subsidiaries' computer systems and (ii)
equipment containing embedded microchips (including systems and equipment
supplied by others or with which the Guarantors', the Borrowers' and their
respective Subsidiaries' systems interface) and the testing of all such systems
and equipment, as so reprogrammed, will be completed by July 1, 1999. The cost
to the Guarantors, the Borrowers and their respective Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Guarantors, to the Borrowers or their respective Subsidiaries will
not result in a Default or a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Guarantors, the Borrowers and
their respective Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue to be, sufficient to permit the Guarantors, the
Borrowers and their respective Subsidiaries to conduct its business without
Material Adverse Effect.
t. No Senior Indebtedness. No Indebtedness of any Guarantor is senior
in payment to any Guaranteed Obligations, and no Indebtedness of any Borrower or
their respective Subsidiaries is senior in payment to the Guaranteed Obligations
of such Borrower or Subsidiary, if any.
u. Knowledge of the Obligor. Each Guarantor hereby acknowledges that
it has its own independent knowledge of the financial condition of the Borrowers
and has had an opportunity to review all other matters pertaining to this
Guaranty and further acknowledges that it is not relying in any manner upon any
representation or statement of the Lender with respect thereto. Each Guarantor
represents and warrants that it has received and has had an opportunity to
review copies of all of the Loan Documents and that it is in a position to
obtain, and it hereby assumes full responsibility for obtaining, any additional
information concerning the financial condition of the Borrowers and any other
matters pertinent hereto that the Guarantors may desire. Neither Guarantor is
relying upon or
expecting the Lender to furnish to the Guarantors any information now or
hereafter in the Lender's possession concerning the financial condition of the
Borrowers or any other matter.
v. Voluntary. Each Guarantor has voluntarily undertaken the
obligations under this Guaranty and Loan Documents to which it is a party with
full awareness of their significance and risks, and has had the opportunity to
discuss each document with legal counsel.
w. Separate Obligations. Any discussions or transactions between or
among the Lender or any of its agents and the Guarantors, or any other Person,
on matters not clearly and expressly covered by this Guaranty are separate and
independent from this Guaranty. There are no conditions precedent or subsequent
to the obligations of the Guarantors under this Guaranty.
x. Benefits to Guarantors. The Loan that is to be made and extended by
the Lender to the Borrowers is be contemporaneously paid to or used in whole or
in part for the economic benefit of the Borrowers and the Guarantors. It is the
position, intent and expectation of the Guarantors that each Guarantor has
derived and will derive significant, substantial and direct benefits from the
accommodations that have been and are being made by the Lender to the Borrowers.
Moreover, it is the position, intent and expectation of the Guarantors that any
and all payments that the Guarantors may make to or for the benefit of the
Borrowers and which the Guarantors intend to be used to repay the Lender, shall
be used contemporaneously to repay the Lender the sums owed to the Lender. It is
the position, intent and expectation of the Guarantors that, to the maximum
extent permitted by law, these transfers constitute contemporaneous exchanges
for value given to the Guarantors and, therefore, qualify for the protection and
benefits of Section 547(c) of the Bankruptcy Code.
y. Adequacy of Consideration. Each Guarantor has received at least
"reasonably equivalent value" and "fair consideration" (as such phrases are used
in Section 548 of the Bankruptcy Code or any other applicable law, respectively)
and more than sufficient consideration to support the obligations and Liens
created under this Guaranty and the Loan Documents securing such Guarantor's
obligations hereunder and all repayments or other transfers made or to be made
by such Guarantor to the Lender pursuant hereto.
z. Merger. As of the date hereof, the Merger has occurred pursuant to
and substantially in accordance with the terms of the Merger Agreement.
aa. Capital Expenditures. Schedule 4(aa) lists all construction of any
additions or expansions to existing hotels and improvements for which Capital
Expenditures are permitted under Section 8(g) and the related credit facility or
loan.
5. Unconditional Guaranty. Each Guarantor agrees that the liability
hereunder shall be the immediate, direct, and primary obligation of each
Guarantor and shall not be contingent upon the exercise or enforcement by the
Lender of any remedy against the Borrowers, any other Guarantor, or any other
Person, or any security for any Guaranteed
Obligations. Without limiting the generality of the foregoing, the obligations
of the Guarantors hereunder shall remain in full force and effect without regard
to, and shall not be terminated, impaired or affected by, nor shall the
Guarantors be exonerated or discharged by, any of the following events:
a. Insolvency. Insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition, assignment for the benefit of creditors, death,
liquidation, winding up or dissolution of any Borrower, any Affiliate of any
Borrower, any Guarantor, any Affiliate of any Guarantor, or any other guarantor
of any Liabilities or other Guaranteed Obligations;
b. Limitations. Any limitation, discharge, moratorium or cessation of
the liability of any Borrower, any Guarantor or any other guarantor for any
Liabilities or other Guaranteed Obligations due to any statute, regulation,
decree, judgment, order, stay or rule of law, or any invalidity or
unenforceability in whole or in part of any documents evidencing the Liabilities
or other Guaranteed Obligations or any other guaranty of the Liabilities or
other Guaranteed Obligations;
c. Merger. Any merger, acquisition, consolidation or change in
structure of any Borrower, either Guarantor, or any other guarantors of any
Liabilities or other Guaranteed Obligations or any sale, lease, transfer or
other disposition of any or all of the assets or shares of any Borrower, either
Guarantor, or any other guarantors of the Liabilities or other Guaranteed
Obligations;
d. Transfers. Any assignment or other transfer, in whole or in part,
of the interests in and rights under this Guaranty, including the right of the
Lender to receive payment of the Liabilities or other Guaranteed Obligations, as
the case may be, or any assignment or other transfer, in whole or in part, of
the interests of the Lender in and to any Collateral securing the Guaranteed
Obligations;
e. Defenses. Any claim, counterclaim or setoff, other than that of
prior payment in cash in full or performance, that any Borrower, any Affiliate
of any Borrower, including the Guarantors, any Affiliate of any Guarantor, or
any other guarantors of the Liabilities or other Guaranteed Obligations may have
or assert, including any defense of incapacity or lack of corporate or other
authority to execute any documents relating to any of the Guaranteed Obligations
or any Collateral securing any of the Guaranteed Obligations;
f. Amendments. The amendment, modification, renewal, extension,
cancellation or surrender of any agreement, document or instrument relating to
any Loan Document, any Guaranteed Obligation or any Collateral securing the
Guaranteed Obligations (other than any cancellation or surrender reflecting
prior payment in cash in full or performance), or the exchange, release, or
waiver of any Collateral securing the Liabilities or the other Guaranteed
Obligations;
g. Exercise of Remedies. The exercise, nonexercise or any delay in
exercise, by the Lender of any power, right or remedy with respect to any of the
Guaranteed Obligations or any Collateral securing any of the Guaranteed
Obligations, including the compromise, release, settlement or waiver by the
Lender with or of any Borrower, any Affiliate of any Borrower, any Guarantor,
any Affiliate of any Guarantor, or any other Person;
h. Actions. The vote, claim, distribution, election, acceptance,
action or inaction by the Lender in any bankruptcy case related to any of the
Guaranteed Obligations, or any Collateral securing any of the Guaranteed
Obligations; or
i. Impairment. Any impairment or invalidity of any of the Collateral
securing any of the Guaranteed Obligations or any failure to perfect any of the
Liens of the Lender thereon or therein.
j. Release of Collateral. The release of any Collateral securing the
Guaranteed Obligations whether pursuant to the release provisions of the Loan
Agreement or otherwise.
6. Additional Consents and Agreements. In addition to each of those items
set forth in subsections 5(a) through (j) above, the Guarantors hereby
unconditionally consent and agree that, without notice to or further assent from
the Guarantors:
a. Amount of Indebtedness. The principal amount of any or all of the
Liabilities and the other Guaranteed Obligations may be increased or decreased
and additional indebtedness or obligations of the Borrowers or any other party
under any of the Loan Documents or the Note may be incurred, by one or more
amendments, modifications, renewals or extensions of any Loan Document or
otherwise.
b. Terms of Payment. The time, manner, place or terms of any payment
under any Loan Document may be extended or changed, including by an increase or
decrease in the interest rate on any Liability or other Guaranteed Obligation or
any fee or other amount payable under any Loan Document by an amendment,
modification, change or renewal of any Loan Document or otherwise.
c. Time for Performance. The time for the Borrowers' or any other
Person's performance of or compliance with any term, covenant or agreement on
its part to be performed or observed under any Loan Document may be extended, or
such performance or compliance waived, or failure in or departure from such
performance or compliance consented to, all in such manner and upon such terms
as the Lender may deem proper.
d. Discharge or Release. The Lender may discharge or release, in whole
or in part, any Guarantor or any other Person liable for the payment and
performance of all or any part of the Guaranteed Obligations, and may permit or
consent to any such action or any result of such action, and shall not be
obligated to demand or enforce payment or performance upon any of the Guaranteed
Obligations or Collateral securing any Guaranteed
Obligations, nor shall the Lender be liable to the Guarantors or any other
Person for any failure to collect or enforce payment or performance of any of
the Guaranteed Obligations or to realize on any of the Collateral securing any
Guaranteed Obligation.
e. Other Collateral. In addition to the Collateral securing the
Guaranteed Obligations, the Lender may take and hold other security (legal or
equitable) of any kind, at any time, as collateral for any or all of the
Guaranteed Obligations, and may, from time to time, in whole or in part,
exchange, sell, surrender, release, subordinate, modify, waive or extend such
security and may permit or consent to any such action or the result of any such
action, and may apply such security and direct the order or manner of sale
thereof.
f. Exercise of Remedies. The Lender may exercise, or waive or
otherwise refrain from exercising, any right, remedy, power or privilege
(including the right to accelerate the maturity of the Liabilities and any other
Guaranteed Obligation and any power of sale) granted by any Loan Document or
other document or agreement, or otherwise available to the Lender, with respect
to any of the Guaranteed Obligations, any of the Collateral or other security
for any or all of the Guaranteed Obligations, even if the exercise of such
right, remedy, power or privilege affects or eliminates any right of the
Guarantors against the Borrowers, any Affiliate of the Borrowers, any other
Guarantor or any other Person. If any Borrower shall have taken advantage of, or
be subject to the protection of, any provision in the Bankruptcy Code, the
effect of which is to prevent or delay Lender from taking any remedial action
against any Borrower, including the exercise of any option Lender has to declare
the Liabilities due and payable on the happening of any default or event by
which under the terms of the Note or the Loan Documents, the Guaranteed
Obligations shall become due and payable, and Lender may, as against Guarantors,
nevertheless, declare the Guaranteed Obligations due and payable and enforce any
or all of its rights and remedies against the Guarantors provided for herein.
All of the foregoing actions in this Section 6 may be taken (or not taken) as
the Lender may deem advisable, and all without impairing, abridging, releasing
or affecting this Guaranty or any other rights or security of the Lender.
7. Affirmative Covenants. Each Guarantor hereby jointly and severally
agrees that each Guarantor shall, and shall cause each of its Subsidiaries and
each Borrower to:
a. Financial Statements. Furnish to Lender:
(i) (A) as soon as available, but in any event within 95 days after
the end of each fiscal year of Lodgian, a copy of the audited consolidated
balance sheet of Lodgian and its consolidated Subsidiaries as of the end of
such year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising
out of the scope of the audit, by Ernst & Young or other independent
certified public accountants of nationally recognized standing; and
(B) as soon as available, but in any event within 95 days after the
end of each fiscal year of Servico, a copy of the consolidated profit and
loss statements for Servico and its consolidated Subsidiaries of income,
cash flows and retained earnings for such year;
(ii) (A) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal
year of Lodgian, the unaudited consolidated balance sheet of Lodgian and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous
year, attested to by a Responsible Officer of Lodgian as being fairly
stated in all material respects (subject to normal year-end audit
adjustments); and
(B) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal
year of Servico, the consolidated profit and loss statements for Servico
and its consolidated Subsidiaries of income, cash flows and retained
earnings for such quarter and the portion of the fiscal year through the
end of such quarter, attested to by a Responsible Officer of Lodgian as
being fairly stated in all material respects (subject to normal year-end
audit adjustments);
(iii) (A) as soon as available, but in any event not later than 50
days after the end of each month occurring during each fiscal year of
Lodgian (other than the third, sixth, ninth and twelfth such month), the
unaudited consolidated balance sheets of Lodgian and its consolidated
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and of cash flows for such month and the
portion of the fiscal year through the end of such month, setting forth in
each case in comparative form the figures for the previous year, attested
to by a Responsible Officer of Lodgian as being fairly stated in all
material respects (subject to normal year-end audit adjustments); and
(B) as soon as available, but in any event not later than 50 days
after the end of each month occurring during each fiscal year of Servico
(other than the third, sixth, ninth and twelfth such month), consolidated
profit and loss statements of income, cash flows and retained earnings for
such month and the portion of the fiscal year through the end of such
month, together with operating statements for each Asset of Servico and
each Borrower and each of their respective Subsidiaries, each attested to
by a Responsible Officer of Lodgian as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
b. Certificates; Other Information. Shall furnish to Lender:
(i) concurrently with the delivery of the financial statements
referred to in Sections 7(a), a certificate (or, with respect to Servico
only, an agreed upon procedures letter or an auditor's confirmation letter)
of the independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, and verifying
that the covenants contained in Sections 7(j), 8(a), 8(b), and 8(f) are
complied with at the end of such period, except as specified in such
certificate;
(ii) concurrently with the delivery of any financial statements
pursuant to Section 7(a), (A) an attestation of a Responsible Officer of
Lodgian stating that, to the best of each such Responsible Officer's
knowledge, Lodgian, Servico, each Borrower and their respective
consolidated Subsidiaries during such period has observed or performed all
of its covenants and other agreements, and satisfied every condition,
contained in this Guaranty and the other Loan Documents to which it is a
party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such attestation and (B) in the case of
quarterly or annual financial statements, a Compliance Certificate
containing all information and calculations necessary for determining
compliance by Lodgian and Servico, each Borrower and their respective
Subsidiaries with the provisions of this Guaranty referred to therein as of
the last day of the fiscal quarter or fiscal year of Lodgian and Servico,
as the case may be;
(iii) as soon as available, and in any event no later than 50 days
after the end of each fiscal year of Lodgian, a detailed consolidated
budget for the following fiscal year (including a projected consolidated
balance sheet of Lodgian and its respective Subsidiaries as of the end of
the following fiscal year, and the related consolidated statements of
projected cash flow, projected changes in financial position and projected
income), and, as soon as available, significant revisions, if any, of such
budget and projections with respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer of Lodgian stating that such
Projections are based on reasonable estimates, information and assumptions
and that such Responsible Officer has no reason to believe that such
Projections are incorrect or misleading in any material respect;
(iv) within 50 days after the end of each fiscal quarter of Lodgian, a
narrative discussion and analysis of the financial condition and results of
operations of
Lodgian and its consolidated Subsidiaries for such fiscal quarter and for
the period from the beginning of the then current fiscal year to the end of
such fiscal quarter, as compared to the comparable periods of the previous
year;
(v) within five days after the same are sent, copies of all financial
statements and reports which Lodgian, Servico or any Subsidiary of either
sends to the holders of any class of its debt securities or public equity
securities and, within five days after the same are filed, copies of all
financial statements and reports which the Guarantors or the Borrowers or
their respective Subsidiaries may make to, or file with, the SEC;
(vi) as soon as possible and in any event within 10 days of obtaining
knowledge thereof: (A) any development, event, or condition that,
individually or in the aggregate with other developments, events or
conditions, could reasonably be expected to result in the payment by each
Guarantor, any Borrower or any of their respective Subsidiaries, in the
aggregate, of a Material Environmental Amount; and (B) any notice that any
governmental authority may deny any application for an Environmental Permit
sought by, or revoke or refuse to renew any Environmental Permit held by,
any Guarantor, any Borrower or their respective Subsidiaries; and
(vii) promptly, such additional financial and other information as the
Lender may from time to time reasonably request.
c. Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Guarantors, the Borrowers or their respective Subsidiaries, as
the case may be.
d. Conduct of Business and Maintenance of Existence, etc. (i) (A)
Preserve, renew and keep in full force and effect its corporate existence and
(B) take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except, in each
case, as otherwise permitted by Section 8(d) and except, in the case of clause
(B) above, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and (ii) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
e. Maintenance of Property; Insurance. (i) Keep all property and
systems necessary in its business in good working order and condition, ordinary
wear and tear excepted and (ii) maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a
similar business.
f. Inspection of Property; Books and Records; Discussions. (i) Keep
proper books of records and account in which full, true and correct in all
material respects entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities and (ii) permit representatives of the Lender to visit and inspect
any of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired upon
not less than three (3) business days notice and to discuss the business,
operations, properties and financial and other condition of any Guarantor, any
Borrower and their respective Subsidiaries with the Responsible Officer of
Lodgian or other designated employees of any Guarantor, any Borrower and their
respective Subsidiaries and with its independent certified public accountants.
g. Notices of Certain Occurrences. Promptly give notice to the Lender
of:
(i) the occurrence of any Default or Event of Default;
(ii) any (A) default or event of default under any Contractual
Obligation of any Guarantor, any Borrower or any of their Subsidiaries or
(B) litigation, investigation or proceeding which may exist at any time
between any Guarantor, any Borrower or any of their respective Subsidiaries
and any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to
have a Material Adverse Effect;
(iii) any litigation or proceeding affecting any Guarantor, any
Borrower or any of their respective Subsidiaries in which the amount
involved is $2,500,000.00 or more and not covered by insurance or in which
injunctive or similar relief is sought;
(iv) any default by any Guarantor under (A) any Recourse Financing,
(B) any Recourse Indebtedness that is not Recourse Financing, which is the
subject of a good faith dispute and which has a principal balance in excess
of $1,000,000.00, whether on an individual or aggregate basis, or (C) any
Non-Recourse Indebtedness which has a principal balance of $5,000,000.00,
whether on an individual or an aggregate basis;
(v) the following events, as soon as possible and in any event within
30 days after any Guarantor or any Borrower knows or has reason to know
thereof: (A) the occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation
of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (B)
the institution of proceedings or the taking of any other action by the
PBGC, any Guarantor, any Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal
from, or the termination, Reorganization or Insolvency of, any Plan;
(vi) each notice of default under any Franchise Agreement received by
any Guarantor, any Borrower, or any of their Subsidiaries immediately upon
receipt thereof, and notice, not later than 90 days prior to the date of
expiration of the term of any Franchise Agreement, of the Guarantors' or
related Borrower's or any of their Subsidiary's intention either to renew
or to not renew such Franchise Agreement, and if such party intends to
renew such Franchise Agreement, the terms and conditions of such renewal;
(vii) any quality assurance reports or similar reports of inspection
or compliance from the franchisor under any Franchise Agreement, including
without limitation, any property improvement programs; and
(viii) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 7(g) shall be accompanied by a statement of
a Responsible Officer of each Guarantor setting forth details of the occurrence
referred to therein and stating what action the Guarantors, Borrower or the
relevant Subsidiary proposes to take with respect thereto.
h. Compliance with Environmental Laws. In the case of each Guarantor,
each Borrower and their respective Subsidiaries, they shall comply in all
material respects with, and ensure compliance in all material respects by all
tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws; and (ii) conduct and complete
all investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.
i. Equity or Debt Offerings and Asset Sales. All Net Cash Proceeds
from any equity or debt offering by Servico or Lodgian shall be immediately paid
to Lender and applied to the payment of the Guaranteed Obligations. All Net Cash
Proceeds from any Asset Sale by any Guarantor, any Borrower or any of their
respective Subsidiaries shall be applied to the payment of the Guaranteed
Obligations (other than those listed on Schedule 7(i), the Net Cash Proceeds of
which may be retained by the seller thereof) shall be immediately paid to Lender
and applied to the payment of the scheduled principal amortization payments due
pursuant to the Note in their inverse order of maturity.
j. Working Capital. Lodgian shall at all times maintain at least (1)
$10,000,000.00 from the date hereof through and including March 31, 1999 and
(ii)
$15,000,000.00 thereafter (which number in either case shall include the
Replacement Reserve Account required under the Loan Documents with respect to
the Properties) in unrestricted cash and/or in undrawn and available borrowing
capacity under a line of credit for use as working capital (the "Working Capital
Line"). The terms and conditions of any such Working Capital Line shall be
reasonably satisfactory to Lender.
k. Stock. Lodgian shall at all times remain listed and in good
standing on either the New York Stock Exchange, the American Stock Exchange or
NASDAQ.
l. Further Assurances. In the case of each Guarantor and each
Borrower, they shall, from time to time execute and deliver, or cause to be
executed and delivered, such additional instruments, certificates or documents,
and take all such actions, as Lender may reasonably request, for the purposes of
implementing or effectuating the provisions of this Guaranty and the other Loan
Documents, or of more fully perfecting or renewing the rights of Lender with
respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or assets
hereafter acquired by the Guarantors or Borrowers which may be deemed to be part
of the Collateral) pursuant hereto or thereto. Upon the exercise by Lender of
any power, right, privilege or remedy pursuant to this Guaranty or the other
Loan Documents which requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, the Guarantor will execute and
deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that the Lender may
be required to obtain from any Guarantor, Borrower or any of their Subsidiaries
for such governmental consent, approval, recording, qualification or
authorization.
8. Negative Covenants. Each Guarantor hereby jointly and severally agrees
that each Guarantor shall not, and shall not permit any of its Subsidiaries or
any Borrower to, directly or indirectly:
a. Financial Condition Covenants.
(i) Consolidated Leverage Ratio. Permit, at any time during the term
of the Loan, the Consolidated Leverage Ratio of Lodgian or Servico during the
period ending on the date set forth below to exceed the ratio set forth below
opposite such period.
Consolidated Leverage Consolidated Leverage
Period Ending on Ratio of Lodgian Ratio of Servico
---------------- ---------------- ----------------
December 31, 1999 6.75 5.60
the Maturity Date 5.30 5.00
(ii) Consolidated Interest Coverage Ratio. Permit, at any time during
the term of the Loan, the Consolidated Interest Coverage Ratio of Lodgian or
Servico during the period ending on the date set forth below to be less than the
ratio set forth below opposite such period:
Consolidated Interest Consolidated Interest
Period Ending on Coverage Ratio of Lodgian Coverage Ratio of Servico
---------------- ------------------------- -------------------------
December 31, 1999 1.30 1.50
the Maturity Date 1.50 1.50
(iii) Consolidated Fixed Charge Coverage Ratio. Permit, at any time
during the term of the Loan, the Consolidated Fixed Charge Coverage Ratio of
Lodgian or Servico during the period ending on the date set forth below to be
less than the ratio set forth below opposite such period:
Consolidated Fixed Charge Consolidated Fixed Charge
Period Ending on Coverage Ratio of Lodgian Coverage Ratio of Servico
---------------- ------------------------- -------------------------
December 31, 1999 1.01 1.01
the Maturity Date 1.01 1.01
(iv) Maintenance of Net Worth. Permit, at any time during the term of
the Loan, the Consolidated Net Worth of Lodgian during the period set forth
below to be less than the amount set forth below opposite such period:
Consolidated Net
Period Ending on Worth of Lodgian
------------------ -----------------
the Maturity Date $232,500,000.00
The Financial Condition Covenants in Section 8(a)(i) through (iv) shall be
calculated by Lodgian on a quarterly basis, and delivered to Lender together
with the financial statements required to be delivered pursuant to Section 7(a)
and (b) for such quarter during the term of the Loan.
b. Limitation on Indebtedness. In addition to any limitations set
forth in the other Loan Documents, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness of any Guarantor or Borrower pursuant to any
Loan Document;
(ii) Indebtedness of any Guarantor or any Borrower to any of
their respective Subsidiaries and of any Guarantor or any Borrower to any
other Borrower or any other Subsidiary which arises solely as a result of
the terms and conditions of Servico's Cash Management System;
(iii) Indebtedness outstanding on the date hereof and listed on
Schedule 8(b)(iii) and any refinancings (including any refinancing in
connection with a securitization) refundings, renewals or extensions
thereof (without any increase in the principal amount thereof or any
shortening of the maturity of any principal amount thereof);
(iv) Non-Recourse Indebtedness in connection with the Investments
permitted under Section 8(h)(vi);
(v) Permitted Financing and Indebtedness otherwise permitted
under the Loan Agreement;
(vi) Indebtedness incurred after the date hereof by Impac III
pursuant to the Impac III Loan Agreement in connection with the refinancing
of the Dedham Construction Loan and the Little Rock Construction Loan;
(vii) Working Capital Line, as it may be refinanced from time to
time upon terms acceptable to Lender;
(viii) additional Indebtedness resulting from the draw down of
unfunded commitments in existence on the date hereof, as described as
Schedule 8(b)(iii);
(ix) Indebtedness in an amount not exceeding $3,000,000.00 under
an existing commitment from Lyon Credit for FF&E financing as described on
Schedule 8(b)(iii); or
(x) guaranties to franchisors of payment of franchise or similar
fees under a Franchise Agreement entered into by a Subsidiary of any
Guarantor or any Borrower, or of the performance of any related property
improvement plans, in each case made in the ordinary course of Guarantors'
business.
c. Limitation on Liens. In addition to any limitations set forth in
the other Loan Documents, create, incur, assume or suffer to exist any Lien upon
any of its Property, whether now owned or hereafter acquired, except for:
(i) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Guarantors, the
Borrowers or their respective Subsidiaries, as the case may be, in
conformity with GAAP;
(ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith by appropriate proceedings;
(iii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(iv) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(v) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Guarantors, the Borrowers or any of their respective Subsidiaries;
(vi) Liens in existence on the date hereof listed on Schedule
8(b)(iii) securing Indebtedness permitted by Section 8(b)(iii)), provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is not
increased;
(vii) Liens created pursuant to the Loan Documents;
(viii) Liens created in connection with Permitted Financing or
otherwise permitted under the Loan Agreement; and
(ix) Liens securing the payment of the Working Capital Line
provided that they encumber no Assets other than the Assets listed on
Schedule 7(i).
d. Limitation on Fundamental Changes. In addition to any limitations
set forth in the other Loan Documents, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or
substantially all of its Assets, property or business, except that:
(i) any Subsidiary of any Guarantor or of any Borrower may be
merged or consolidated with or into a Borrower (provided that such Borrower
shall be the continuing or surviving corporation) or with or into any
Guarantor (provided that such Guarantor shall be the continuing or
surviving corporation); and
(ii) any Subsidiary of any Guarantor or any Borrower may dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to
any Borrower, any Guarantor or any of their respective Wholly-Owned
Subsidiaries, provided that with respect to any merger, consolidation or
disposition permitted under clauses (i) or (ii), after such merger or
consolidation or disposition, Lodgian or a Wholly-Owned Subsidiary of
Lodgian is the sole shareholder of Servico and Servico or a Wholly-Owned
Subsidiary of Servico is the sole general partner and limited partner or
sole shareholder, as the case may be, of each Borrower other than Servico
Centre Associates Ltd., and with respect to Servico Centre Associates Ltd.,
is the sole general partner thereof.
(iii) the Little Rock Subsidiary and the Dedham Subsidiary may
merge with and into Impac III, with Impac III in each case being the
surviving entity, in connection with the refinancing of the Little Rock
Construction Loan and the Dedham Construction Loan, respectively, with
loans to be made to Impac III pursuant to the Impac III Loan Agreement.
e. Limitation on Disposition of Assets. In addition to any limitations
set forth in the other Loan Documents and subject to Section 8(s), dispose of
any of its Assets (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or issue or sell any shares
of such Subsidiary's Capital Stock to any Person, except:
(i) the Disposition of obsolete or worn out property in the
ordinary course of business;
(ii) the sale of inventory in the ordinary course of business;
(iii) Dispositions permitted by Section 8(d)(ii);
(iv) the sale or issuance of the Capital Stock of any Subsidiary
of a Borrower or of a Guarantor to such Borrower or such Guarantor or to
one or more Wholly-Owned Subsidiaries of such Guarantor;
(v) the Disposition of other Assets provided that such
Disposition (A) is pursuant to an arms length contract of sale with a bona
fide independent third party for a price equal to such Asset's fair market
value, (B) is otherwise permitted under the Loan Documents, (C) would not
result in a Default under this Guaranty, and (D) the
requirements of Section 7(i) are complied with in connection therewith, and
provided further, that the purchase price is paid entirely in cash;
(vi) any Asset Sale or Recovery Event, provided, that the
requirements of Section 7(i) are complied with in connection therewith;
(vii) the transfer of any hotel and related Assets by a
Wholly-Owned Subsidiary of any Guarantor to one or more bankruptcy-remote,
special purpose Wholly-Owned Subsidiaries of the Guarantors in order to
facilitate the securitization or other permitted refinancing of any of the
Guaranteed Obligations or any Indebtedness permitted under Section
8(b)(iii), as contemplated in the Loan Documents or in the Impac Loan
Documents, as applicable; and
(viii) the Disposition of any Asset required to be disposed
pursuant to a Purchase Right that exists as of the date hereof provided
that the requirements of Section 7(i) re complied with.
f. Limitation on Restricted Payments. In addition to any limitations
set forth in the other Loan Documents, declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of any Guarantor, any Borrower or any
Subsidiary of either, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of any Guarantor, any Borrower or any Subsidiary
(collectively, "Restricted Payments"), except that:
(i) any Borrower or Subsidiary of any Guarantor may make
Restricted Payments to the respective Guarantor or any intermediate
Subsidiary of such Guarantor;
(ii) each Borrower and each Subsidiary of any Guarantor may pay
dividends to the respective Guarantor to permit such Guarantor to (A) pay
corporate overhead expenses incurred in the ordinary course of business,
(B) pay any taxes which are due and payable by such Guarantor as part of a
consolidated group, (C) pay interest, principal and dividends in connection
with CRESTS, and (D) pay mandatory distributions required pursuant to the
organizational documents of any Non-Wholly-Owned Subsidiary to an
Unaffiliated Third Party Equity Owner which owns an interest in such
Non-Wholly-Owned Subsidiary.
g. Limitation on Capital Expenditures. In addition to any limitations
set forth in the other Loan Documents, make or commit to make any Capital
Expenditure, except Capital Expenditures of the Borrower and the Borrowers' and
Guarantors' respective Subsidiaries in the ordinary course of business provided,
however, that no Capital Expenditure shall be made for the construction of any
new hotel or other improvement on any vacant property or for the construction of
any addition to or expansion of any existing
hotel or existing improvement on any property; notwithstanding the foregoing,
Capital Expenditures may be made (i) if necessary and required by a franchisor
pursuant to a property improvement plan as a condition to the continuation of
the related Franchise Agreement, (ii) as required to complete construction of
any hotel for which construction has commenced prior to the date hereof and
provided that the related Guarantor or Subsidiary thereof has a committed credit
facility or loan permitted under Section 8(b) which at all times has an undrawn
borrowing capacity equal to or greater than the amount necessary to complete
such construction and (iii) as permitted or required under the Loan Documents;
notwithstanding the foregoing, such committed credit facility shall not be
required for the Assets identified as the Boston Courtyard and the Lake Oswego
on Schedule 4(aa) provided that there is available cash, as set forth in
Lodgian's capital expenditure budget and on Schedule 4(aa), and approved by
Lender, to complete such expansion.
h. Limitation on Investments. In addition to any limitations set forth
in the other Loan Documents, make any advance, loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting an ongoing business from, or make any other investment in, any
other Person or purchase or acquire any interest in any real or personal
property (all of the foregoing, "Investments"), except:
(i) extensions of trade credit in the ordinary course of
business;
(ii) investments in Cash or Cash Equivalents;
(iii) Investments by either Guarantor or any of their respective
Subsidiaries (other than the Borrowers) in an aggregate amount (valued at
cost) not to exceed $5,000,000.00 at any time during the term of the Loan
in Joint Ventures;
(iv) Investments in Wholly-Owned Subsidiaries in connection with
the securitization or other permitted refinancing of any Indebtedness
permitted in Section 8(b)(iii);
(v) personal property necessary for the operation of properties
owned by the Guarantors, the Borrowers or their respective Subsidiaries, as
a full or limited service hotel, as the case may be;
(vi) extensions of credit by the Guarantors and their respective
Subsidiaries pursuant to Servico's Cash Management System; or
(vii) guaranties to franchisors permitted pursuant to Section
8(b)(xi).
i. Limitation on Optional Payments and Modifications of Debt
Instruments, Etc. In addition to any limitations set forth in the other Loan
Documents (i) make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Recourse Indebtedness or Non-Recourse Indebtedness, or segregate
funds for any such payment, prepayment, repurchase, redemption
or defeasance, (ii) designate any Indebtedness (other than the Guaranteed
Obligations) as "Senior Indebtedness" for any purpose or (iii) amend its
certificate of incorporation or other organizational document in any manner
determined by the Lender to be adverse to the Lender.
j. Limitation on Transactions with Affiliates. In addition to any
limitations set forth in the other Loan Documents, enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than the Guarantors) unless
such transaction is (i) otherwise permitted under this Guaranty or, with respect
to the Borrowers, under the Loan Documents, (ii) in the ordinary course of
business of the Guarantors, the Borrowers or their respective Subsidiaries, as
the case may be, and (iii) upon fair and reasonable terms no less favorable to
the Guarantors, the Borrowers or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person which is not
an Affiliate.
k. Limitation on Sales and Leasebacks. In addition to any limitations
set forth in the other Loan Documents, enter into any arrangement with any
Person providing for the leasing by any Guarantor, any Borrower or any of their
respective Subsidiaries of real or personal property which has been or is to be
sold or transferred by any Guarantor, any Borrower or any of their respective
Subsidiaries to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or rental
obligations of any Guarantor, any Borrower or any of their respective
Subsidiaries.
l. Limitation on Changes in Fiscal Periods. In addition to any
limitations set forth in the other Loan Documents, permit the fiscal year of any
Guarantor or any Borrower to end on a day other than December 31 or change the
Guarantors' or the Borrowers' method of determining fiscal quarters.
m. Limitation on Negative Pledge Clauses. In addition to any
limitations set forth in the other Loan Documents, enter into or suffer to exist
or become effective any agreement which prohibits or limits the ability of any
Guarantor, any Borrower or any of their respective Subsidiaries to create,
incur, assume or suffer to exist any Lien upon any of its Assets, property or
revenues, whether now owned or hereafter acquired, other than (i) this Guaranty
and the other Loan Documents, and (ii) any Liens permitted under Section 8(c).
n. Limitation on Restrictions on Subsidiary Distributions. In addition
to any limitations set forth in the other Loan Documents, enter into or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary to (i) make Restricted Payments in respect of any
Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, any
Guarantor or any Borrower or any other Subsidiary, (ii) make Investments in any
Guarantor or any Borrower or any other Subsidiary or (iii) transfer any of its
assets to any Guarantor or any Borrower or any other Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (A) any restrictions
existing under the Loan Documents, (B) restrictions contained in any
Indebtedness permitted in
Section 8(b)(iii) hereof, (C) restrictions existing under the organizational
documents of any Subsidiary of any Guarantor which is required to be a "single
purpose" or "bankruptcy remote" entity in connection with any Indebtedness
permitted under Section 8(b)(iii) and (D) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into in
connection with the Disposition of all or substantially all of the Capital Stock
or assets of such Subsidiary.
o. Limitation on Lines of Business. In addition to any limitations set
forth in the other Loan Documents, enter into any business, either directly or
through any Subsidiary, except for the ownership, development, construction and
management of hospitality properties and activities reasonably related thereto.
p. Limitation on Activities of the Guarantors. (a) In the case of
Lodgian, except as otherwise provided in this Guaranty or any other Loan
Document, (i) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than those
incidental to its ownership of the Capital Stock of Servico and Impac and the
Impac Affiliated Companies, (ii) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations, except (A)
non-consensual obligations imposed by operation of law, (B) pursuant to the Loan
Documents to which it is a party, (C) the Working Capital Line of Credit, and
(D) obligations with respect to its Capital Stock, or (iii) own, lease, manage
or otherwise operate any properties or Assets (including cash (other than cash
received in connection with dividends made by Servico or Impac and the Impac
Affiliated Companies in accordance with Section 8(f) pending application in the
manner contemplated by said Section) and cash equivalents) other than the
ownership of shares of Capital Stock of Servico and Impac and the Impac
Affiliated Companies; and
(b) In the case of Servico, except as otherwise provided in this
Guaranty or any other Loan Document, (i) conduct, transact or otherwise engage
in, or commit to conduct, transact or otherwise engage in, any business or
operations other than those incidental to its ownership of the Capital Stock of
its Subsidiaries or, as applicable, (ii) incur, create, assume or suffer to
exist any Indebtedness or other liabilities or financial obligations, except (A)
non-consensual obligations imposed by operation of law, (B) pursuant to the Loan
Documents to which it is a party, and (C) obligations with respect to its
Capital Stock, or (iii) own, lease, manage or otherwise operate any properties
or Assets (including cash (other than cash received in connection with dividends
made by the Borrowers or other Subsidiaries of Servico in accordance with
Section 8(f) pending application in the manner contemplated by said Section) and
cash equivalents) other than the ownership of shares of Capital Stock of its
Subsidiaries.
q. Negative Pledge Covenant. Enter into or suffer to exist, or permit
any Subsidiary to enter into or suffer to exist, any mortgage, deed of trust,
deed to secure debt or other security instrument or any other Lien, or any
agreement permitting or conditioning the creation or assumption of any Lien upon
any Asset, including without limitation, the Capital Stock of any Guarantor, any
Borrower or their respective Subsidiaries, or any trade
name, trademark, service xxxx, logo, copyright, good will or other general
intangible owned by any Guarantor, any Borrower or any of their respective
Subsidiaries or used in connection with any Asset other than (i) in favor of
Lender, or (ii) Liens permitted under Section 8(c).
r. Limitations on Stock Transfers. Sell, transfer, assign, pledge,
encumber or issue any Capital Stock of Servico, Lodgian, any Borrower, or any of
their respective Subsidiaries except as permitted by Section 8(d);
notwithstanding the foregoing, Capital Stock in Lodgian may be issued, sold,
transferred, assigned, pledged or encumbered, and options for such Capital Stock
may be issued in the ordinary course of business, provided that such Capital
Stock is publicly traded on the New York Stock Exchange, the American Stock
Exchange or NASDAQ.
9. Tolling of Statute of Limitation. The Guarantors agree that any payment
or performance of any of the Liabilities or other Guaranteed Obligations or any
other act which tolls any statute of limitations applicable to any of the
Liabilities or other Guaranteed Obligations shall also toll the statute of
limitations applicable to the Guarantors' liability under this Guaranty.
10. Waivers. Each Guarantor hereby expressly waives and agrees not to
directly or indirectly assert or enforce (a) diligence, presentment, demand for
payment, protest, benefit of any statute of limitations affecting any Borrower
or any other party's liability under any of the Loan Documents or the
enforcement of any Guaranteed Obligations or this Guaranty; (b) discharge due to
any disability of any Borrower or any other party; (c) any defenses of any
Borrower or any other party to obligations under any of the Loan Documents
(other than the defense of prior payment or performance); (d) the benefit of any
act or omission by the Lender or any other party which directly or indirectly
results in or aids the discharge of any Borrower or any other party from any of
the Liabilities or other Guaranteed Obligations, by operation of law or
otherwise (except to the extent that such discharge results from prior payment
in full in cash of the Guaranteed Obligations); (e) all notices whatsoever,
including notice of acceptance of this Guaranty, of the creation, renewal,
modification, extension or accrual of any of the Guaranteed Obligations, or the
reliance by the Lender upon this Guaranty, or the exercise of any right, power
or privilege of the Lender and the incurring of any Guaranteed Obligations; and
(f) any requirement that the Lender or any other party exhaust any right, power
or remedy or proceed against any Borrower, any of the other companies or any
other party or any other security for, or any other Guarantor of, or any other
party liable for, any of the Liabilities or other Guaranteed Obligations. Each
Guarantor specifically agrees that it shall not be necessary or required, and no
Guarantor shall not be entitled to require, that the Lender or any other party
(i) file suit or proceed to assert or obtain a claim for personal judgment
against any Borrower, any other Guarantor, any of the other companies or any
other party for all or any part of the Liabilities or other Guaranteed
Obligations; (ii) make any effort at collection or enforcement of all or any
part of the Liabilities or other Guaranteed Obligations from any of the
Borrowers, any other Guarantor, any of the other companies or any other party;
(iii) foreclose against, collect or seek to realize upon any collateral or any
other security now or hereafter existing for all or any part of the Liabilities
or other Guaranteed Obligations; (iv) file suit or proceed to obtain or assert a
claim for personal judgment against the Guarantors or any other guarantors or
other party liable for all or any part of the Liabilities or other Guaranteed
Obligations; (v) exercise or assert any other right or remedy to which the
Lender or any other party is or may be entitled in connection with the
Liabilities or other Guaranteed Obligations or any security or Guaranty relating
thereto; or (vi) file or assert any claim against assets of the Borrowers, the
Guarantors, or any other party before or as a condition of enforcing the
liability of the Guarantors under this Guaranty. The Liabilities and the other
Guaranteed Obligations, shall conclusively be deemed to have been created,
contracted, incurred and permitted to exist in reliance upon this Guaranty.
11. Continuing Guaranty. This Guaranty shall be a continuing guaranty and
shall remain in effect (subject to Section 12 hereof) until the Liabilities have
been paid in full and all other Guaranteed Obligations have been discharged.
12. Subrogation. No payment or performance hereunder by the Guarantors
shall entitle any Guarantor to (a) subrogation to (or any other interest in) the
rights of the Lender to any of the Liabilities or other Guaranteed Obligations,
or (b) to any payment or performance by the Borrowers, except in each case
(subject to Section 15) after payment and performance in full of the Liabilities
and all other Guaranteed Obligations. Upon such payment and performance in full,
and subject to Section 15 and the other provisions of this Guaranty, the
Guarantors shall be entitled to exercise, by way of subrogation, remaining
rights and remedies (if any) of the Lender in respect of any Guaranteed
Obligations, including any Liabilities. If any amount shall be paid to any
Guarantor on account of the foregoing rights at any time prior to the time that
all the Liabilities and other Guaranteed Obligations have been paid in full,
such amount shall be held in trust for the benefit of the Lender and shall
forthwith be paid to the Lender, to be credited and applied to the Liabilities
and the other Guaranteed Obligations, whether matured or unmatured, in
accordance with applicable terms of the Loan Documents.
13. Reinstatement. Notwithstanding any provisions of the Loan Documents to
the contrary, the liability of the Guarantors hereunder shall be reinstated and
revived and the rights of the Lender shall continue if and to the extent that
for any reason any payment by or on behalf of the Borrowers or the Guarantors is
rescinded or must be otherwise restored by the Lender, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, all as though such
amount had not been paid, and all losses, damages, reasonable and customary
expenses (including reasonable attorneys' fees) that the Lender may suffer or
incur as a result of any voided or otherwise set aside payments shall be
specifically covered by the indemnity contained in Section 15 of this Guaranty.
The determination as to whether any such payment must be rescinded or restored
shall be made by the Lender in their sole discretion; provided, however, that if
the Lender chooses to contest any such matter at the request of any Guarantor,
each Guarantors agrees to indemnify and hold harmless the Lender from all
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees) of such litigation. To the extent any payment is rescinded or
restored, the Liabilities and the other Guaranteed Obligations shall, to the
extent of that payment, be revived in full force and effect without reduction or
discharge for that payment.
14. Subordination of Indebtedness. Any indebtedness or other obligation of
any Borrowers now or hereafter held by or owing to any Guarantor is hereby
subordinated in time and right of payment to all obligations of the Borrowers to
the Lender. Each Guarantor hereby assigns such indebtedness to the Lender,
including the right to file proof of claim and the right to vote thereon in
connection with any proceeding under the Bankruptcy Code, including the right to
vote on any plan of reorganization, and following the occurrence and during the
continuation of an Event of Default, any payments made on account of such
indebtedness shall be collected, enforced and received by the Guarantors in
trust for the Lender to be paid over to the Lender on account of the Liabilities
of the Borrowers to the Lender, but without reducing or affecting in any manner
the liability of the Guarantors under the other provisions of this Guaranty.
Each Guarantor agrees that until such payment in full of the Guaranteed
Obligation, (a) no Guarantor shall accept payment from any other Guarantor by
way of contribution on account of any payment made hereunder by such party to
Lender, (b) no Guarantor will take any action to exercise or enforce any rights
to such contribution, and (c) if any Guarantor should receive any payment,
satisfaction or security for any indebtedness of any Borrower to any other
Guarantor or for any contribution by any other Guarantor for payment made
hereunder by the recipient to Lender, the same shall be delivered to Lender in
the form received, endorsed or assigned as may be appropriate for application on
account of, or as security for, the Guaranteed Obligations and until so
delivered, shall be held in trust for Lender as security for the Guaranteed
Obligations.
15. Indemnification. Each Guarantor shall indemnify, defend in the manner
provided below, and pay and hold harmless the Lender and any holder of any
interest in the Note, and the officers, directors, employees and agents of and
counsel to the Lender and such holders (collectively, the "Indemnitees" and each
individually, an "Indemnitee") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, causes of action, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including the reasonable fees and disbursements of counsel
(including the allocated costs of in-house counsel of the Lender) for such
Indemnitees in connection with any investigative, administrative or judicial
action, suit or proceeding, whether or not any of such Indemnitees shall be
designated a party thereto), which may be imposed on, incurred or suffered by or
asserted against any such Indemnitee, if and to the extent that the same arise
under Section 13 hereof (collectively, the "Indemnified Liabilities"); provided,
however, that (a) the Guarantors shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent the same arise
from any breach of any representation, warranty, covenant or agreement made by
such Indemnitee under this Agreement or from the gross negligence or willful
misconduct of such Indemnitee, and (b) the rights of any Indemnitee hereunder
against any Guarantor in respect of any act or omission of the Guarantors or any
other Person shall not be limited as a consequence of any act or omission of any
other Indemnitee. Each Indemnitee will promptly notify, or cause to be notified,
the Guarantors of (y) each action, suit or proceeding involving an Indemnified
Liability that is the subject of service of process on such Indemnitee, and (z)
each threatened action, suit or proceeding involving an Indemnified Liability of
which the Indemnitee (and, in the case of any Indemnitee that is a party to the
Loan Agreement, the officer of such Indemnitee who
is the named person for notices to be sent under the Loan Agreement) has written
notice; provided, however, that the failure to give the Guarantors prompt notice
shall not adversely affect the indemnity rights granted to such Indemnitee
hereunder except to the extent that the Guarantors establish that it has been
prejudiced by such failure to give notice. If any investigative, judicial or
administrative action, suit or proceeding arising from any Indemnified Liability
is brought against any Indemnitee indemnified or intended to be indemnified
pursuant to this Section 15, the Guarantors, to the extent directed by the
Indemnitees or intended Indemnitees, will resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by counsel designated
by the Guarantors (which counsel shall be reasonably satisfactory to the
affected Indemnitee(s), whose approval shall not be unreasonably delayed or
withheld). Each Indemnitee will use its best efforts to cooperate in the defense
of any such action, suit or proceeding, but solely at the cost of the
Guarantors. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in this Section 15 may be unenforceable because it is
violative of any law or public policy, the Guarantors shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The obligations of the
Guarantors under this Section 15 shall survive the termination of this Guaranty
and the discharge of the other Guaranteed Obligations.
16. Waiver of Rights of Contribution if Guarantors is an Insider.
Notwithstanding anything contained in this Guaranty to the contrary, including
any right of subrogation the Guarantors may have under Section 12, in the event
that (a) the Lender is unsecured or is undersecured by valid and non-avoidable
liens in the collateral, with value equal to or greater than the Liabilities of
the Borrowers included in the Guarantied Obligations or (b) any Guarantor
asserts any claim (contingent or otherwise) against the Borrowers' estate in any
Bankruptcy Case or proceeding with respect to any Guarantied Obligation, the
Guarantors hereby subordinate to the rights and claims of the Lender against the
Borrowers or any security any rights and claims the Guarantors may have or may
hereafter acquire against the Borrowers or any security by reason of any of the
Guarantied Obligations under or relating to this Guaranty, whether arising under
any agreement or implied at law or in equity. The intended effect of this
section is to eliminate any possible impairment of the rights and status of the
Lender as a non-insider arising because of any claim for contribution or
subrogation by the Guarantors in the context of any proceeding under the
Bankruptcy Code involving the Borrowers.
17. Limitation of Guaranty. Any term or provision of this Guaranty or any
other Loan Document to the contrary notwithstanding, the maximum aggregate
amount of the Guarantied Obligations for which each Guarantor shall be liable
shall not exceed the lesser of (a) the sum of the Assets of such Guarantor, at a
fair valuation based upon appraisals or comparable valuations minus the sum of
the liabilities of such Guarantor, and (b) the maximum amount for which such
Guarantor can be liable without rendering this Guaranty or any other Loan
Document, as it relates to such Guarantor, voidable under Section 548 of the
United States Bankruptcy Code or any comparable provision of any state law or
any applicable law relating to fraudulent conveyance or fraudulent transfer.
18. Contribution. To the extent that any Guarantor shall be required
hereunder to pay a portion of the Guarantied Obligations which shall exceed the
greater of (i) the amount of the economic benefit actually received by such
Guarantor from the Loan and (ii) the amount which such Guarantor would otherwise
have paid if such Guarantor had paid the aggregate amount of the Guarantied
Obligations (excluding the amount thereof repaid by the Borrowers and the other
Guarantors) in the same proportion as such Guarantor's net worth at the date
enforcement hereunder is sought bears to the aggregate net worth of all the
Guarantors at the date enforcement hereunder is sought, then such Guarantor
shall be reimbursed by the Borrowers and the other Guarantors for the amount of
such excess, pro rata based on the respective net worth of the Borrowers and
such other Guarantors at the date enforcement hereunder is sought.
19. Notice. All notices or other written communications hereunder shall be
deemed to have been properly given (a) upon delivery, if delivered in person or
by facsimile transmission with receipt acknowledged by the recipient thereof,
(b) one (1) Business Day (hereinafter defined) after having been deposited for
overnight delivery with any reputable overnight courier service, or (c) three
(3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the U.S. Postal Service and sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to any Guarantor:
At the address set forth in the preamble to this Guaranty, Attention:
Xxxxxx Xxxx
With a copy to: Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Aldaheff & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
If to the Lender:
At the address set forth in the preamble to this Guaranty
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Section, the term "Business Day" shall
mean a day on which the Lender or commercial banks are not authorized or
required by law to close in New York, New York.
Either party by notice to the other may designate additional or different
addresses for subsequent notices or communications.
20. No Waiver; Cumulative Remedies. The rights granted the Lender under
this Guaranty or any other Loan Document or allowed to the Lender by law or in
equity shall be cumulative and may be exercised at any time and from time to
time. No failure on the
part of the Lender to exercise, and no delay in exercising, any right hereunder
shall be construed or deemed to be a waiver thereof, nor shall any single or
partial exercise by the Lender of any right hereunder preclude any other or
future exercise thereof or the exercise of any other right.
21. Benefit of Guaranty. This Guaranty is made and entered into for the
sole protection and benefit of the Lender and its successors and assigns, and no
other Person, including other creditors or general or limited partners of the
Borrowers, shall be a direct or indirect beneficiary of, or shall have any
direct or indirect cause of action or claim in connection with, this Guaranty.
Except for the rights of the Lender and its successors and assigns under the
applicable Loan Documents, nothing in this Guaranty shall directly or indirectly
make any other Person a third party or other beneficiary hereto or to any of the
Loan Documents or create any obligations or duties by the Lender to any such
Person. The Lender shall not have any obligation to any such other Persons in
connection with this Guaranty, and the Lender shall be entitled to exercise (or
to refrain from exercising) any of its rights or remedies against the Guarantors
without regard to any other Persons.
22. Keep Well Covenants. Each Guarantor shall (a) cause each of its
Subsidiaries to be operated and managed in such a manner that it will fulfill
its obligations under the Loan Documents to which it is a party; (b) not file
any petition for relief under the United States Bankruptcy Code or under any
similar federal or state law against any such Subsidiaries; (c) provide funding
to each Subsidiary to the extent necessary to enable each Subsidiary to fulfill
its obligations under the Loan Documents.
23. Right of Set-Off. Upon the occurrence and during the continuance of any
Event of Default, the Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Lender to or for the credit
or the account of the Guarantors against any and all of the obligations of the
Guarantors now or hereafter existing under this Guaranty, irrespective of
whether or not the Lender shall have made any demand under this Guaranty and
although such obligations may be contingent and unmatured. The Lender agrees
promptly to notify the Guarantors after any such set-off and application made by
the Lender; provided, however, that the failure to give such notice shall not
effect the validity of such set-off and application. The rights of the Lender
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Lender may have.
24. Interpretation. At no time shall the prior or subsequent course of
conduct by any of the parties hereto directly or indirectly limit, impair or
otherwise adversely affect any of the rights or remedies of the Lender (or
excuse or affect any of the Guarantors' obligations) in connection with this
Guaranty or detract from or otherwise affect the literal interpretation and
effect of this Guaranty. The descriptive headings in this Guaranty are for
convenience of reference only and shall not affect the meaning of any provision
of this Guaranty.
25. No Offset or Right of Recoupment. The Guarantors shall not under any
circumstances fail or delay to perform (or resist the enforcement of) any of its
obligations to the Lender in connection with this Guaranty because of any
alleged offsetting claim or right of recoupment or cause of action against the
Lender (or any Indebtedness or obligation of the Lender) which has not been
confirmed in a final judgment of a court of competent jurisdiction (sustained on
appeal, if any) against the Lender, and the Guarantors hereby waive any such
rights of setoff (or offset) or right of recoupment or which it might otherwise
have with respect to any such claims or causes of action against the Lender (or
any such obligations or Indebtedness of the Lender) unless and until such right
of setoff is confirmed and liquidated by such a final judgment.
26. Choice of Law. This Guaranty shall be governed by and be construed in
accordance with the laws of the State of New York and the applicable laws of the
United States of America.
27. Successors and Assigns. This Guaranty shall be binding upon and inure
to the benefit of the Guarantors and the Lender, and their respective permitted
successors, assigns and legal representatives of every kind, character or nature
to the maximum extent of the law and in accordance with any limitations set
forth in this Guaranty, specifically including, with respect to the Lender, any
subsequent holder or holders of the Note or any interest therein, and the term
"Lender" shall include any such holder or holders, including, without
limitation, any Administrative Agent or Co-Lenders, as provided in Section 71 of
the Loan Agreement. The Guarantors shall not assign or delegate any of its
obligations under this Guaranty in whole or in part. The Guarantors acknowledge
and agree that (a) any assignee or transferee of the Lender and any subsequent
assignee or transferee thereof shall be vested with all the rights and powers of
the Lender hereunder; and (b) any assignment or transfer by the Lender or
subsequent assignment or transfer by such initial assignee or transferee shall
in no way whatsoever impair or affect the Guarantors' obligations under this
Guaranty or the Lender' rights, privileges, powers or remedies with respect to
any indebtedness, the Guaranteed Obligations, or contract then existing or
thereafter arising between the Borrowers, on the one hand, and the Lender, on
the other, that is not transferred.
28. Costs and Expenses. The Guarantors shall pay to the Lender all
reasonable and customary costs and expenses (including all reasonable attorneys'
fees and disbursements), incurred by the Lender in connection with the
enforcement or attempted enforcement of, and preservation of any rights or
interests under, this Guaranty.
29. Integration. This Guaranty (a) constitutes the entire agreement between
or among the parties hereto relating to the subject matter hereof, (b) shall
supersede and take the place of all negotiations, drafts, instruments, and
written or oral communications purporting to be an agreement of the parties
hereto relating to the subject matter hereof, and (c) is intended by each of the
parties hereto to be the complete statement of the terms and conditions, and the
final expression, of their agreement relating to the subject matter hereof.
30. Severability. If any provision or provisions, or if any portion of any
provision or provisions, contained in this Guaranty is or are found by a court
of competent jurisdiction to be in violation of any applicable local, state or
federal ordinance, statute, law, administrative or judicial decision, or public
policy, and if such court should declare any such portion, provision or
provisions of this Guaranty to be illegal, invalid, unlawful, void or
unenforceable as written or applied, then it is the intent of the parties hereto
(i) that such portion, provision or provisions shall be given force to the
fullest possible extent that they are legal, valid and enforceable, including by
virtue of any suspension or stay of such ruling pending appeal or other judicial
review, by virtue of any reversal of such decision by a higher court or by
reducing the amount or degree of any obligation or waiver which is unenforceably
excessive by the minimum amount in order to make the same enforceable, (ii) that
the remainder of this Guaranty shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were either not
contained therein or not applied in such a manner as to be so unenforceable and
(iii) that the rights, obligations and interests of the parties hereto under the
remainder of this Guaranty (including such portion, provision or provisions as
otherwise applied) shall continue in full force and effect.
31. Waiver of Jury Trial. LENDER AND EACH GUARANTOR HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THIS GUARANTY, THE LOAN EVIDENCED BY THE NOTE, THE
LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER OR
ANY GUARANTOR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION THEREWITH.
32. Consent to Service. Each Guarantor will maintain a place of business or
an agent for service of process at the address set forth in the first paragraph
hereof and give prompt notice to Lender of any change of address of such place
of business and of the name and address of any new agent appointed by it, as
appropriate. Each Guarantor further agrees that the failure of its agent for
service of process to give it notice of any service of process will not impair
or affect the validity of such service or of any judgment based thereon. Each
Guarantor irrevocably consents to service of process by registered or certified
mail, postage prepaid, to it at its address given in or pursuant to the first
paragraph hereof.
33. Submission to Jurisdiction. With respect to any claim or action arising
hereunder, each Guarantor (a) irrevocably submits to the nonexclusive
jurisdiction of (i) the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York, New York, and
appellate courts from any thereof, and (ii) the courts of the states (or
countries) in which any of the Collateral is located and any United States
District Court located in any of the states in which any of the Collateral is
located, and appellate courts from any thereof, and (b) irrevocably waives any
objection which it may have at any time to the laying on venue of any suit,
action or proceeding arising out of or relating to this Guaranty brought in any
such court, irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum.
34. Jurisdiction Not Exclusive. Nothing in this Guaranty will be deemed to
preclude Lender from bringing an action or proceeding with respect hereto in any
other jurisdiction.
35. Waiver of Election of Remedies. To the extent applicable, each
Guarantor waives all rights and defenses arising out of an election of remedies
by the Lender, even though that election of remedies, such as nonjudicial
foreclosure with respect to the security for a guaranteed obligation, has
destroyed such Guarantors' rights of subrogation and reimbursement against the
Borrowers by the operation of Section 580d of the Code of Civil Procedure of the
State of California or otherwise.
NO FURTHER TEXT ON THIS PAGE
36. Waiver of Appraisal Rights. The laws of the State of South Carolina
provide that in any real estate foreclosure proceeding, a defendant against whom
a personal judgment is taken or asked may within thirty (30) days after the sale
of any Property located in South Carolina, as defined in the Mortgage, apply to
the court for an order of appraisal. The statutory appraisal value as approved
by the court would be substituted for the high bid and may decrease the amount
of any deficiency owing in connection with the transaction. THE UNDERSIGNED
HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE
HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS
OF ANY APPRAISED VALUE OF THE PROPERTY.
IN WITNESS WHEREOF, the Guarantors have executed and delivered this
Guaranty as of the date first written above.
--------------------------------------------------------------------------------
LODGIAN, INC. KDS CORPORATION
By: By:
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
Title: Vice President Title: Vice President
----------------------------------- -------------------------------------------
SERVICO, INC. AMIOP ACQUISITION CORP.
By: By:
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
Title: Vice President Title: Vice President
----------------------------------- ------------------------------------------
--------------------------------------------------------------------------------
SERVICO OPERATIONS CORPORATION SERVICO ACQUISITION CORP.
By: By:
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
Title: Vice President Title: Vice President
----------------------------------- -------------------------------------------
XXXXXX MOTEL ENTERPRISES, INC. PALM BEACH MOTEL ENTERPRISES, INC.
By: By:
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
Title: Vice President Title: Vice President
----------------------------------- ------------------------------------------
SCHEDULE 1
BORROWER/LESSEE PROPERTY LESSOR/LENDER ANNUAL
PAYMENTS
----------------------------------------------------------------------------------------------------------------------------------
SERVICO CENTRE ASSOCIATES LIMITED OMNI HOTEL WEST PALM BEACH, FL FINANCIAL MARKETING SERVICES, INC. $51,007
PARTNERSHIP GELCO CORPORATION D/B/A GE CAPITAL
CHARTER FINANCIAL, INC.
LYON CREDIT
----------------------------------------------------------------------------------------------------------------------------------
SERVICO METAIRIE, INC. QUALITY HOTEL METAIRIE, LA TELERENT $59,160
M&SD
CHARTER FINANCIAL, INC.
----------------------------------------------------------------------------------------------------------------------------------
ALBANY HOTEL, INC. OMNI ALBANY HOTEL, NY FINANCIAL MARKETING SERVICES, INC. $55,560
CHARTER FINANCIAL, INC.
LYON CREDIT
----------------------------------------------------------------------------------------------------------------------------------
SERVICO ROLLING XXXXXXX, INC. HOLIDAY INN ROLLING MEADOWS, IL LYON CREDIT $53,976
----------------------------------------------------------------------------------------------------------------------------------
SERVICO XXXX XXXX XXXXX, XXX. XXXXXXXX XXXX XXXX XXXXX, XX LYON CREDIT $57,272
----------------------------------------------------------------------------------------------------------------------------------
MINNEAPOLIS MOTEL ENTERPRISES, INC. HOLIDAY INN ST. XXXX, MN FINANCIAL MARKETING SERVICES, INC. $58,266
M&SD
CHARTER FINANCIAL, INC.
LYON CREDIT
METLIFE CAPITAL
----------------------------------- -------------------------------------- ------------------------------------------------------
SERVICO AUSTIN, INC. HOLIDAY INN AUSTIN SOUTH, TX FINANCIAL MARKETING SERVICES, INC.. $59,500
TELERENT
M&SD
CHARTER FINANCIAL, INC.
LYON CREDIT
-----------------------------------------------------------------------------------------------------------------------------------
IMPAC HOTELS, L.L.C. HOLIDAY INN RIVERSIDE, RIVERSIDE, CA SQUIRREL/SULCUS $51,235
------------------------------------------------------------------------------------------------------------------------------------
IMPAC HOTELS, L.L.C. HOLIDAY INN RIVERSIDE, RIVERSIDE, CA XXXX ADVERTISING $51,300
------------------------------------------------------------------------------------------------------------------------------------
MELBOURNE HOSPITALITY ASSOCIATES HOLIDAY INN MELBOURNE, FL FINANCIAL MARKETING SERVICES, INC. $71,232
LIMITED PARTNERSHIP GE CAPITAL
CHARTER FINANCIAL, INC.
LYON CREDIT
------------------------------------------------------------------------------------------------------------------------------------
FORT XXXXX HOSPITALITY ASSOCIATES II, HOLIDAY INN FORT XXXXX, IN TELERENT $181,560
LIMITED PARTNERSHIP CHARTER FINANCIAL, INC.
LYON CREDIT
SANLYN & ASSOC.
GIAC
------------------------------------------------------------------------------------------------------------------------------------
RALEIGH DOWNTOWN ENTERPRISES, INC. HOLIDAY INN RALEIGH, NC MS&D $177,276
CHARTER FINANCIAL GROUP, INC.
GIAC
------------------------------------------------------------------------------------------------------------------------------------
APICO INNS OF PITTSBURGH, INC. HOLIDAY INN MONROEVILLE, PA TELERENT $52,184
MS&D
LYON CREDIT
------------------------------------------------------------------------------------------------------------------------------------
MOON AIRPORT MOTEL, INC. CLARION ROYCE HOTEL PITTSBURGH, PA FINANCIAL MARKETING SERVICES, INC. $67,056
MS&D
CHARTER FINANCIAL, INC.
LYON CREDIT
------------------------------------------------------------------------------------------------------------------------------------
WILPEN, INC. XXXXXX XXXXXXX PENN, PA AMPLICON FINANCIAL $53,736
------------------------------------------------------------------------------------------------------------------------------------
SAGINAW HOSPITALITY LIMITED HOLIDAY INN SAGINAW, MI LYON CREDIT $223,368
PARTNERSHIP
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2
PURCHASE RIGHTS
The following summarizes the purchase rights under partnership agreements
applicable to the following entities:
1. The following provisions apply to the following partnerships: (i) 1075
Hospitality, L.P., (ii) Fort Xxxxx Hospitality Associates II Limited
Partnership, (iii) Brecksville Hospitality, L.P. (Holiday -Richfield), (iv)
Saginaw Hospitality Limited Partnership (Crowne Plaza -Saginaw), (v) Sioux
City Hospitality, L.P. (Hilton -Sioux City), (vi) Worcester Hospitality
Associates Limited Partnership (Crowne Plaza -Worcester).
- change of ownership of 50% or more of Servico's
general partner entity or the stock of the entities which control
it or Servico, Inc. requires the consent of the other partners.
Failure to consent requires the non-consenting partner to acquire
Servico's partnership interests at its "net fair market value".
- either general or limited partners may deliver a Sale Notice (as
such term is defined in the applicable partnership agreement)
stating the amount the party delivering the notice is offering to
sell the partnership interest for. The party in receipt of the
notice is afforded a 10-day period to respond. If the recipient
declines the offer or fails to respond, then the party that
delivers the Sale Notice is provided the opportunity to solicit
outside offers to purchase the partnership's hotel. If an outside
offer is received for an amount that would result in a
distribution to the party delivering the Sale Notice which is 5%
greater than the amount that would have otherwise been received
had the Sale Notice been accepted, then the party in receipt of
the Sale Notice must cooperate with the sale. If an offer is
received that the party delivering the Sale Notice desires to
accept, but does not meet the above criteria, and the offer would
result in a distribution to the partners in an amount adequate to
fully recover their capital, then the party receiving the Sale
Notice may acquire the partnership interest of the party
delivering the notice for the amount that the partner would have
received as a distribution if the sale had occurred or in the
alternative, cooperate with the Sale.
2. Columbus Hospitality Associates Limited Partnership (Holiday Inn -Columbus)
- subsequent to 12/20/97 the limited partners can require Servico's
general partner entity to place the partnership's assets for
sale. The general partner has the option to consent or to
negotiate with the limited partners for the purchase of their
partnership interests. If the partnership receives an offer to
purchase and
the limited partners want to accept, then the general partner can
cash out the limited partners for the amount of the proceeds they
would have received had the transaction been consummated.
3. SLB Managers LP (the general partner of the European venture)
- Section 5.9 contains buy/sell provisions in the event that both
of the general partners are unable to reach agreement with
respect to any Major Decision (as defined in said partnership
agreement).
SCHEDULE 4(Q)
-------------
OWNERSHIP OF PERCENTAGE
SUBSIDIARY JURISDICTION INTERESTS IN OF
SUBSIDIARY OWNERSHIP
-------------------------------- --------------------------- ---------------------------------- ---------------------
12801 NWF Beverage, Inc. TEXAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
3401 AUSTIN BEVERAGE TEXAS CORPORATION SERVICO OPERATIONS CORP. 100%
CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
AMIOP ACQUISITION CORP. DELAWARE CORPORATION SERVICO, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
ALBANY HOTEL, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
APICO HILLS INC. PENNSYLVANIA XXXXXX MOTEL ENTERPRISES, 100%
CORPORATION INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
APICO INNS OF GREEN TREE, PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
APICO INNS OF PENNSYLVANIA XXXXXX MOTEL ENTERPRISES, 100%
PENNSYLVANIA, INC. CORPORATION INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
APICO INNS OF PITTSBURGH, PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
APICO MANAGEMENT CORP. PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
ATLANTA-HILLSBORO LODGING, GEORGIA LIMITED SERVICO, INC. 100%
L.L.C. LIABILITY COMPANY
-------------------------------- --------------------------- ---------------------------------- ---------------------
BRECKSVILLE HOSPITALITY, INC. OHIO CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
BRUNSWICK MOTEL GEORGIA CORPORATION SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
DOTHAN HOSPITALITY 3053, ALABAMA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
DOTHAN HOSPITALITY 3071, ALABAMA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
EUROPEAN VENTURE, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
FAYETTEVILLE MOTEL NORTH CAROLINA SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
FOURTH STREET HOSPITALITY, IOWA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
FT. LAUDERDALE MOTEL FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
ASSOCIATES INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
GADSDEN HOSPITALITY, INC. ALABAMA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
GREAT SOUTHERN MINING CO., ALABAMA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
GROUPERS AND COMPANY SOUTH CAROLINA SERVICO OPERATIONS CORP. 100%
SEAFOOD RESTAURANT CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
HARRISBURG MOTEL PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
HEARTLANDS GARDEN GRILLE, KANSAS CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
HILTON HEAD MOTEL SOUTH CAROLINA SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
ISLAND MOTEL ENTERPRISES, GEORGIA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
KDS CORPORATION NEVADA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
XXXXXX MOTEL ENTERPRISES, INDIANA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
LODGIAN AMI, INC. MARYLAND CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
LODGIAN ANAHEIM, INC. CALIFORNIA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
LODGIAN FLORIDA, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
LODGIAN LANCASTER NORTH, PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
LODGIAN MANAGEMENT DELAWARE CORPORATION SERVICO OPERATIONS CORP. 100%
CORP.
-------------------------------- --------------------------- ---------------------------------- ---------------------
LODGIAN ONTARIO, INC. CALIFORNIA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
LODGIAN YORK MARKET PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
STREET, INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
MARKETING DESIGN FORCE, FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
MAIN AVENUE BEVERAGE TEXAS CORPORATION SERVICO OPERATIONS CORP. 100%
CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
MC BEVERAGE CORP. TEXAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
XXXXXXXX MOTEL, INC. PENNSYLVANIA XXXXXX MOTEL ENTERPRISES, 100%
CORPORATION INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
MINNEAPOLIS MOTEL MINNESOTA CORPORATION XXXXXX MOTEL ENTERPRISES, 100%
ENTERPRISES, INC. INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
MOON AIRPORT MOTEL, INC. PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
XXXXXXXX'X, INC. ALABAMA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
NEW ORLEANS AIRPORT MOTEL FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
NH MOTEL ENTERPRISES, INC. MICHIGAN CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
PALM BEACH MOTEL FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
PENMOCO, INC. GEORGIA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
RALEIGH-DOWNTOWN NORTH CAROLINA SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
RALEIGH MOTEL ENTERPRISES, NORTH CAROLINA SERVICO OPERATIONS CORP. 100%
INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
ROYCE MANAGEMENT CORP. GEORGIA CORPORATION SERVICO OPERATIONS CORP. 100%
OF GA.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHG-S SUB, INC. FLORIDA CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHG-I SUB, INC. GEORGIA CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHG-II SUB, INC. KENTUCKY CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHG-III SUB, INC. KENTUCKY CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHG-IV SUB, INC. FLORIDA CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHG-VI SUB, INC. DELAWARE CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHGV-VII SUB, INC. DELAWARE CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHGV-VIII SUB, INC. FLORIDA CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SECOND FAYETTEVILLE MOTEL NORTH CAROLINA SHARON MOTEL ENTERPRISES, 100%
ENTERPRISES, INC. CORPORATION INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SECOND PALM BEACH MOTEL FLORIDA CORPORATION XXXXXX MOTEL ENTERPRISES, 100%
ENTERPRISES, INC. INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO ACQUISITION CORP. FLORIDA CORPORATION SERVICO, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO AUSTIN, INC. TEXAS CORPORATION KDS CORPORATION 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO CEDAR RAPIDS, INC. IOWA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO COLESVILLE, INC. MARYLAND CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO COLUMBIA, INC. MARYLAND CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO COLUMBIA II, INC. MARYLAND CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO COLUMBUS, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO CONCORD, INC. CALIFORNIA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO COUNCIL BLUFFS, INC. IOWA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO EAST WASHINGTON, FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO FLAGSTAFF, INC. ARIZONA CORPORATION KDS CORPORATION 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO FORT XXXXX, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO FORT XXXXX XX, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO FRISCO, INC. COLORADO CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO FT. XXXXXX, INC. DELAWARE CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO GRAND ISLAND, INC. NEW YORK CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO HILTON HEAD, INC. SOUTH CAROLINA SERVICO OPERATIONS CORP. 100%
CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO HOSPITALITY, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO HOTELS I, INC. FLORIDA CORPORATION KDS CORPORATION 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO HOTELS II, INC. FLORIDA CORPORATION KDS CORPORATION 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO HOTELS III, INC. FLORIDA CORPORATION KDS CORPORATION 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO HOTELS IV, INC. FLORIDA CORPORATION KDS CORPORATION 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO HOUSTON, INC. TEXAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO, INC. FLORIDA CORPORATION LODGIAN, INC. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO JAMESTOWN, INC. NEW YORK CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO LANSING, INC. MICHIGAN CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO LAWRENCE, INC. KANSAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO XXXXXXXX XX, INC. KANSAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO MANAGEMENT CORP. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO MANAGEMENT TEXAS CORPORATION SERVICO OPERATIONS CORP. 100%
CORPORATION (TEXAS)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO MANHATTAN, INC. KANSAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO MANHATTAN II, INC. KANSAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO MARKET CENTER, INC. TEXAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO MARYLAND, INC. MARYLAND CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO MELBOURNE, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO METAIRIE, INC. LOUISIANA CORPORATION KDS CORPORATION 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO NEW YORK, INC. NEW YORK CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO NIAGARA FALLS, INC. NEW YORK CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO NORTHWOODS, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO OMAHA, INC. NEBRASKA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO OMAHA CENTRAL, NEBRASKA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO OPERATIONS FLORIDA CORPORATION SERVICO, INC. 100%
CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO PENSACOLA, INC. DELAWARE CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO PENSACOLA 7200, DELAWARE CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO PENSACOLA 7330, DELAWARE CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO ROLLING MEADOWS, ILLINOIS CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO ROSEVILLE, INC. MINNESOTA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO SAGINAW, INC. MICHIGAN CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO SILVER SPRING, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO SUMMERVILLE, INC. SOUTH CAROLINA SERVICO OPERATIONS CORP. 100%
CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO TUCSON, INC. ARIZONA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO VALHALLA, INC. NEVADA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO VALHALLA II, INC. NEVADA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO WEST DES MOINES, IOWA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO WEST PALM BEACH, FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO WICHITA, INC. KANSAS CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO WINDSOR, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO WINDSOR II, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO WINTER HAVEN, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO WORCESTER, INC. FLORIDA CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
XXXXXX MOTEL ENTERPRISES, PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHC OF DELAWARE, INC. DELAWARE CORPORATION SERVICO OPERATIONS CORP. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
SHEFFIELD MOTEL ENTERPRISES, ALABAMA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
SIXTEEN HOTELS, INC. MARYLAND CORPORATION AMI OPERATING PARTNERS, L.P. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
STEVENS CREEK HOSPITALITY, GEORGIA CORPORATION SERVICO OPERATIONS CORP. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
WASHINGTON MOTEL PENNSYLVANIA SERVICO OPERATIONS CORP. 100%
ENTERPRISES, INC. CORPORATION
-------------------------------- --------------------------- ---------------------------------- ---------------------
WILPEN INC. PENNSYLVANIA XXXXXX MOTEL ENTERPRISES, 100%
CORPORATION INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
1075 HOSPITALITY, L.P. GEORGIA LIMITED STEVENS CREEK HOSPITALITY, 51%
PARTNERSHIP INC.
(GENERAL PARTNER)
SOL VATION, INC. D/B/A XXXXX 48%
MANAGEMENT COMPANY
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
1%
WOLVERINE HOSPITALITY
COMPANY, INC.
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
AMI OPERATING PARTNERS, DELAWARE LIMITED AMI ACQUISITION CORP. 100%
L.P. PARTNERSHIP (GENERAL PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
BRECKSVILLE HOSPITALITY, OHIO LIMITED BRECKSVILLE HOSPITALITY, INC. 51%
L.P. PARTNERSHIP (GENERAL PARTNER)
SOL VATION, INC. D/B/A XXXXX
MANAGEMENT COMPANY 48%
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
WOLVERINE HOSPITALITY 1%
COMPANY, INC.
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
COLUMBUS HOSPITALITY FLORIDA LIMITED SERVICO COLUMBUS, INC. 30%
ASSOCIATES, L.P. PARTNERSHIP (GENERAL PARTNER)
A GROUP OF 18 INVESTORS 70%
(LIMITED PARTNERS)
(UNAFFILIATED)
-------------------------------- --------------------------- ---------------------------------- ---------------------
EAST WASHINGTON ARIZONA LIMITED SERVICO EAST WASHINGTON, INC.
ASSOCIATES, L.P. PARTNERSHIP (GENERAL PARTNER)
100%
SERVICO TUCSON, INC.
(LIMITED PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
FORT XXXXX HOSPITALITY FLORIDA LIMITED SERVICO FORT XXXXX XX, INC. 51%
ASSOCIATES II, L.P. PARTNERSHIP (GENERAL PARTNER)
SOL VATION, INC. D/B/A XXXXX
MANAGEMENT COMPANY 48%
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
SPIRE REALTY GROUP 1%
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
LAWRENCE HOSPITALITY, L.P. KANSAS LIMITED SERVICO XXXXXXXX, INC. 100%
PARTNERSHIP (GENERAL PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
MANHATTAN HOSPITALITY, L.P. KANSAS LIMITED SERVICO MANHATTAN, INC.
PARTNERSHIP (GENERAL PARTNER)
100%
SERVICO MANHATTAN II, INC.
(LIMITED PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
MELBOURNE HOSPITALITY FLORIDA LIMITED SERVICO MELBOURNE, INC. 50%
ASSOCIATES, L.P. PARTNERSHIP (GENERAL PARTNER)
A GROUP OF 18 INVESTORS 50%
(LIMITED PARTNERS)
(UNAFFILIATED)
-------------------------------- --------------------------- ---------------------------------- ---------------------
NEW ORLEANS AIRPORT MOTEL FLORIDA LIMITED NEW ORLEANS AIRPORT MOTEL 50%
ASSOCIATES, L.P. PARTNERSHIP ENTERPRISES, INC.
(GENERAL PARTNER)
A GROUP OF 18 INVESTORS 50%
(LIMITED PARTNERS)
(UNAFFILIATED)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SAGINAW HOSPITALITY, L.P. MICHIGAN LIMITED SERVICO SAGINAW, INC. 51%
PARTNERSHIP (GENERAL PARTNER)
SOL VATION, INC. D/B/A XXXXX 48%
MANAGEMENT COMPANY
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
WOLVERINE HOSPITALITY 1%
COMPANY, INC.
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SERVICO CENTER ASSOCIATES FLORIDA LIMITED PALM BEACH MOTEL 50%
LTD. PARTNERSHIP ENTERPRISES, INC.
(GENERAL PARTNER)
A GROUP OF 35 INVESTORS 50%
(LIMITED PARTNERS)
(UNAFFILIATED)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SIOUX CITY HOSPITALITY, L.P. IOWA LIMITED FOURTH STREET HOSPITALITY, INC. 51%
PARTNERSHIP (GENERAL PARTNER)
SOL VATION, INC. D/B/A XXXXX 48%
MANAGEMENT COMPANY
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
WOLVERINE HOSPITALITY 1%
COMPANY, INC.
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SOUTHFIELD HOTEL GROUP II, MICHIGAN LIMITED S.A.I. CORPORATION 1%
L.P. PARTNERSHIP (GENERAL PARTNER)
XXXXXXXX MOTEL, INC. 50%
(LIMITED PARTNER)
SOUTHFIELD ASSOCIATES 49%
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
WORCESTER HOSPITALITY FLORIDA LIMITED SERVICO WORCESTER, INC. 51%
ASSOCIATES, L.P. PARTNERSHIP (GENERAL PARTNER)
SOL VATION HOSPITALITY, INC., 48%
D/B/A XXXXX MANAGEMENT
COMPANY
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
WORCESTER HOSPITALITY 1%
COMPANY, INC.
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. GEORGIA LIMITED LODGIAN, INC. 100%
LIABILITY COMPANY
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC SPE #1, INC. GEORGIA CORPORATION IMPAC HOTEL GROUP, L.L.C. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC SPE #2, INC. GEORGIA CORPORATION IMPAC HOTEL GROUP, L.L.C. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC SPE #3, INC. GEORGIA CORPORATION IMPAC HOTEL GROUP, L.L.C. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC SPE #4, INC. GEORGIA CORPORATION IMPAC HOTEL GROUP, L.L.C. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC SPE #5, INC. GEORGIA CORPORATION IMPAC HOTEL GROUP, L.L.C. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC SPE #6, INC. GEORGIA CORPORATION IMPAC HOTEL GROUP, L.L.C. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOLDINGS III, L.L.C. GEORGIA LIMITED IMPAC HOTEL GROUP, L.L.C. 100%
LIABILITY COMPANY
-------------------------------- --------------------------- ---------------------------------- ---------------------
ATLANTA-BOSTON HOLDINGS, GEORGIA LIMITED IMPAC HOTEL GROUP, L.L.C. 100%
L.L.C. LIABILITY COMPANY
-------------------------------- --------------------------- ---------------------------------- ---------------------
ATLANTA-BOSTON SPE, INC. GEORGIA CORPORATION IMPAC HOTEL GROUP, L.L.C. 100%
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. 99%
IMPAC HOTELS I, L.L.C. GEORGIA LIMITED (MEMBER)
LIABILITY COMPANY
IMPAC SPE #1, INC. 1%
(MANAGING MEMBER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. 99%
IMPAC HOTELS II, L.L.C. GEORGIA LIMITED (MEMBER)
LIABILITY COMPANY
IMPAC SPE #2, INC. 1%
(MANAGING MEMBER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
DIA LODGING ASSOCIATES, GEORGIA CORPORATION IMPAC SPE #3, INC. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
DIA LODGING ASSOCIATES I IMPAC HOTEL GROUP, L.L.C. 99%
L.P. GEORGIA LIMITED (LIMITED PARTNER)
PARTNERSHIP
IMPAC SPE #3, INC. 1%
(GENERAL PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
LITTLE ROCK LODGING GEORGIA CORPORATION IMPAC SPE #3, INC. 100%
ASSOCIATES, INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
LITTLE ROCK LODGING IMPAC HOTEL GROUP, L.L.C. 99%
ASSOCIATES I, L.P. GEORGIA LIMITED (LIMITED PARTNER)
PARTNERSHIP
IMPAC SPE #3, INC. 1%
(GENERAL PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
TULSA LODGING ASSOCIATES, GEORGIA CORPORATION IMPAC SPE #3, INC. 100%
INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. 99%
TULSA LODGING ASSOCIATES I, GEORGIA LIMITED (LIMITED PARTNER)
L.P. PARTNERSHIP
IMPAC SPE #3, INC. 1%
(GENERAL PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
DEDHAM LODGING GEORGIA CORPORATION IMPAC SPE #3, INC. 100%
ASSOCIATES, INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. 99%
DEDHAM LODGING GEORGIA LIMITED (LIMITED PARTNER)
ASSOCIATES I, L.P. PARTNERSHIP
IMPAC SPE #3, INC. 1%
(GENERAL PARTNER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
LAFAYETTE LODGING GEORGIA CORPORATION IMPAC SPE #3, INC. 100%
ASSOCIATES, INC.
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. 60%
MACON HOTEL ASSOCIATES, MASSACHUSETTS LIMITED (MANAGING MEMBER)
L.L.C. LIABILITY COMPANY
PCG/MACON INVESTMENT 40%
CORP. (NOT AFFILIATED WITH
IMPAC)
(MEMBER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. 99%
IMPAC HOTEL MANAGEMENT, GEORGIA LIMITED (MEMBER)
L.L.C. LIABILITY COMPANY
IMPAC SPE #4, INC. 1%
(MANAGING MEMBER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOTEL GROUP, L.L.C. 99%
IMPAC DEVELOPMENT AND GEORGIA LIMITED (MEMBER)
CONSTRUCTION, L.L.C. LIABILITY COMPANY
IMPAC SPE #5, INC. 1%
(MANAGING MEMBER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
IMPAC HOLDINGS III, L.L.C. 99%
IMPAC HOTELS III, L.L.C. GEORGIA LIMITED (MEMBER)
LIABILITY COMPANY
IMPAC SPE #6, INC. 1%
(MANAGING MEMBER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
ATLANTA-BOSTON LODGING, ATLANTA BOSTON HOLDINGS,
L.L.C. GEORGIA LIMITED L.L.C. 99%
LIABILITY COMPANY (MEMBER)
ATLANTA-BOSTON SPE, INC. 1%
(MANAGING MEMBER)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SLB HOLDINGS, L.P. DELAWARE LIMITED SLB MANAGERS, L.P. 1%
PARTNERSHIP (GENERAL PARTNER)
SERVICO OPERATIONS CORP. 49.5%
(LIMITED PARTNER)
LBSLB I, INC. 49.5%
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SLB MANAGERS, L.P. DELAWARE LIMITED EUROPEAN VENTURES, INC. 50%
PARTNERSHIP (GENERAL PARTNER)
LBSLB II, INC. 1%
(GENERAL PARTNER)
(UNAFFILIATED ENTITY)
LBSLB III, INC. 49%
(LIMITED PARTNER)
(UNAFFILIATED ENTITY)
-------------------------------- --------------------------- ---------------------------------- ---------------------
SCHEDULE (4(AA))
ALL PERMITTED CAPITAL EXPENDITURES
FOR ADDITIONS OR EXPANSIONS OF EXISTING HOTELS OR IMPROVEMENTS
------------------------ ---------------------- -------------------- ----------------------- ------------------------
PROPERTY DESCRIPTION OF TOTAL COST OF COST OF COST TO COMPLETE
EXPANSION OR CONSTRUCTION CONSTRUCTION CONSTRUCTION
ADDITION EXPENDED TO DATE
------------------------ ---------------------- -------------------- ----------------------- ------------------------
PORTLAND MARRIOTT CONSTRUCTION OF $34,302,000 $27,760,601 $6,541,399
XXXXXXXX, XX 000 ROOM
MARRIOTT
------------------------ ---------------------- -------------------- ----------------------- ------------------------
LIVERMORE CONSTRUCTION OF
COURTYARD BY 122 ROOM $11,924,630 $6,527,278 $5,397,352
MARRIOTT COURTYARD
LIVERMORE, CA
------------------------ ---------------------- -------------------- ----------------------- ------------------------
RIO RANCHO HILTON CONSTRUCTION OF $10,214,409 $8,982,309 $1,232,100
GARDEN 000 XXXX XXXXXX
XXX XXXXXX, XX GARDEN
------------------------ ---------------------- -------------------- ----------------------- ------------------------
DENVER AIRPORT CONSTRUCTION OF $24,494,344 $24,299,892 $194,452
MARRIOTT 238 ROOM
AURORA, CO MARRIOTT
------------------------ ---------------------- -------------------- ----------------------- ------------------------
LAKE OSWEGO CONSTRUCTION OF $16,631,836 $4,717,665 11,914,171
HILTON GARDEN 181 ROOM HILTON
LAKE OSWEGO, OR GARDEN
------------------------ ---------------------- -------------------- ----------------------- ------------------------
BOSTON COURTYARD RENOVATION AND $16,078,495 $9,446,640 $6,631,855
BY MARRIOTT ADDITION OF NEW
REVERE, MA 30 ROOM TOWER
------------------------ ---------------------- -------------------- ----------------------- ------------------------
PROPERTY AMOUNT OF SOURCE OF FUNDS
-------- UNFUNDED ---------------
CREDIT FACILITY
------------------------ --------------------- ------------------------
PORTLAND MARRIOTT $6,541,399 NOMURA
PORTLAND, OR
------------------------ --------------------- ------------------------
LIVERMORE
COURTYARD BY $5,397,352 NOMURA
MARRIOTT
LIVERMORE, CA
------------------------ --------------------- ------------------------
RIO RANCHO HILTON $1,232,100 NOMURA
GARDEN
RIO RANCHO, NM
------------------------ --------------------- ------------------------
DENVER AIRPORT $194,452 NOMURA
MARRIOTT
AURORA, CO
------------------------ --------------------- ------------------------
LAKE OSWEGO 11,642,285 NOMURA
HILTON GARDEN
LAKE OSWEGO, OR
------------------------ --------------------- ------------------------
BOSTON COURTYARD $0.00 NONE
BY MARRIOTT
REVERE, MA
------------------------ --------------------- ------------------------
SCHEDULE 7(I)
EXCLUDED ASSETS
PROPERTY OWNER CITY STATE
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL ADJACENT TO THE SHERATON SERVICO OMAHA, INC. OMAHA NE
OMAHA
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL ADJACENT TO THE WINDSOR SERVICO WINDSOR, INC. WINDSOR ONT
HOLIDAY INN SELECT
------------------------------------------ --------------------------------- ----------------------------------------
LAND & BUILDING, FORMERLY THE XXXXXX APICO INNS OF PENNSYLVANIA PITTSBURGH PA
XXXXXXX PITTSBURGH AIRPORT INC.
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL LODGIAN ANAHEIM, INC. ANAHEIM CA
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL ATLANTA-HILLSBORO LODGING, HILLSBORO OR
INC.
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL LODGIAN ONTARIO, INC. ONTARIO CA
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL ADJACENT TO THE HOLIDAY IMPAC HOTELS I, L.L.C. DALLAS TX
INN SELECT (APPROXIMATELY 1 ACRE)
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL SECOND PALM BEACH MOTEL W. PALM BEACH FL
ENTERPRISES, INC.
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL SECOND FAYETTEVILLE MOTEL FAYETTEVILLE NC
ENTERPRISES, INC.
------------------------------------------ --------------------------------- ----------------------------------------
OFFICE BUILDING ADJACENT TO THE SERVICO MARYLAND, INC. SILVER SPRING MD
HOLIDAY INN
------------------------------------------ --------------------------------- ----------------------------------------
HOLIDAY INN LANCASTER NORTH AMI OPERATING PARTNERS, L.P. LANCASTER PA
PRIOR TO CONVEYANCE TO
LODGIAN LANCASTER NORTH, INC.
------------------------------------------ --------------------------------- ----------------------------------------
HOLIDAY INN MARKET STREET AMI OPERATING PARTNERS, L.P. YORK PA
PRIOR TO CONVEYANCE TO
LODGIAN YORK MARKET STREET,
INC.
------------------------------------------ --------------------------------- ----------------------------------------
LAND PARCEL RALEIGH NORTH ASSOCIATES RALEIGH NC
JOINT VENTURE (SERVICO 50%
OWNER)
------------------------------------------ --------------------------------- ----------------------------------------
SCHEDULE 8(B)(III)
BORROWER RECOURSE GUARANTOR COLLATERAL LENDER
TO
BORROWER
--------------------------------- ---------------- ------------------ ----------------------------------- -------------
ALBANY HOTEL, INC. OMNI ALBANY HOTEL, NY
APICO HILLS, INC. YES LODGIAN, INC. XXXXXXX XXX XXXXXXX XXXX, XX XXXXXX
APICO INNS OF GREEN TREE, INC. HOLIDAY INN GREENTREE, PA
APICO INNS OF PITTSBURGH, INC. SERVICO, INC. HOLIDAY INN MONROEVILLE, PA
BRUNSWICK MOTEL ENTERPRISES, INC. HOLIDAY INN BRUNSWICK, GA
DOTHAN HOSPITALITY 3053, INC. SERVICO HOLIDAY INN DOTHAN, AL
DOTHAN HOSPITALITY 3071, INC. OPERATIONS CORP. HAMPTON INN DOTHAN, AL
FAYETTEVILLE MOTEL ENTERPRISES, INC. HOLIDAY INN FAYETTEVILLE, NC
GADSDEN HOSPITALITY, INC. XXXXXX MOTEL HOLIDAY INN EXPRESS GADSDEN, AL
SERVICO CENTER ASSOCIATES, LTD. ENTERPRISES, INC. OMNI HOTEL WEST PALM BEACH, FL
MINNEAPOLIS MOTEL ENTERPRISES, INC. HOLIDAY INN ST. XXXX, MN
NH MOTEL ENTERPRISES, INC. KDS NORTHFIELD HILTON, MI
SERVICO AUSTIN, INC. CORPORATION HOLIDAY INN AUSTIN, TX
SERVICO CEDAR RAPIDS, INC. CROWNE PLAZA CEDAR RAPIDS, IA
SERVICO COLESVILLE, INC. AMIOP TOWN CENTER, MD
SERVICO COLUMBIA, INC. ACQUISITION COLUMBIA HILTON, MD
SERVICO FLAGSTAFF, INC. CORP. XXXXXX XXXXXXX FLAGSTAFF, AZ
SERVICO FT. XXXXXX, INC. HOLIDAY INN FT. XXXXXX, FL
SERVICO GRAND ISLAND, INC. SERVICO HOLIDAY INN GRAND ISLAND, NY
SERVICO HILTON HEAD, INC. ACQUISITION FOUR POINTS HOTEL HILTON HEAD, SC
SERVICO HOUSTON, INC. CORP. RAMADA PLAZA HOUSTON, TX
SERVICO JAMESTOWN, INC. HOLIDAY INN JAMESTOWN, NY
SERVICO WINDSOR, INC. XXXX XXXXX XXXXXXX XXX XXXXXXX, XXXXXX
SERVICO MARKET CENTER, INC. MOTEL HOLIDAY INN DALLAS, TX
SERVICO MARYLAND, INC. ENTERPRISES, INC. HOLIDAY INN SILVER SPRING, MD
SERVICO METAIRIE, INC. QUALITY HOTEL METAIRIE, LA
SERVICO NEW YORK, INC. CLARION HOTEL NIAGARA FALLS, NY
SERVICO NIAGARA FALLS, INC. XXXXXXX XXX XXXXXXX XXXXX, XX
SERVICO NORTHWOODS, INC. BEST XXXXXX CHARLESTON AIRPORT, SC
SERVICO PENSACOLA, INC. HOLIDAY INN EXPRESS PENSACOLA, FL
SERVICO PENSACOLA 7200, INC. HOLIDAY INN UNIVERSITY MALL, FL
SERVICO PENSACOLA 7330, INC. HAMPTON INN PENSACOLA, FL
SERVICO ROLLING XXXXXXX, INC. HOLIDAY INN ROLLING MEADOWS, IL
SERVICO ROSEVILLE, INC. COMFORT INN ROSEVILLE, MN
SERVICO XXXX XXXX XXXXX, XXX. XXXXXXXX XXXX XXXX XXXXX, XX
SERVICO WINTER HAVEN, INC. HOLIDAY INN WINTER HAVEN, FL
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SHEFFIELD MOTEL ENTERPRISES, INC. YES LODGIAN, INC. HOLIDAY INN SHEFFIELD, XX XXXXXX
SERVICO SILVER SPRING, INC. DAYS INN SILVER SPRING, MD
AMI OPERATING PARTNERS, L.P. SERVICO, INC. HOLIDAY INN EAST HARTFORD, CT
HOLIDAY INN BELMONT, MD
SERVICO HOLIDAY INN XXXXXXXX BRIDGE, MD
OPERATIONS CORP. HOLIDAY INN YORK ARSENAL, PA
HOLIDAY INN FREDERICK, MD
XXXXXX MOTEL
ENTERPRISES, INC.
KDS
CORPORATION
AMIOP
ACQUISITION
CORP.
SERVICO
ACQUISITION
CORP.
PALM BEACH
MOTEL
ENTERPRISES, INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO CONCORD, INC. YES* LODGIAN, INC. SHERATON CONCORD, CA
AMI OPERATING PARTNERS, L.P. HOLIDAY INN GLEN BURNIE, MD BANC ONE
ISLAND MOTEL ENTERPRISES, INC. SERVICO HOLIDAY INN INNER HARBOR, MD
PENMOCO, INC. CONCORD, INC. HOLIDAY INN XXX XXXXXXX, XX
XXXXXXX XXX XXXXXXXXX XXXX, XX
AMI OPERATING HOLIDAY INN JEKYLL ISLAND, GA
PARTNERS, L.P.
(*ON ENTIRE LOAN
UNTIL RENOVATIONS ISLAND MOTEL
COMPLETE, AND ENTERPRISES, INC.
FOREVER ON
$10,000,000) PENMOCO, INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
ATLANTA-BOSTON LODGING, L.L.C. NO N/A COMFORT INN, REVERE FIRST UNION
NATIONAL
BANK
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
LODGIAN, INC.
YES N/A N/A CRESTS
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
MACON HOTEL ASSOCIATES NO N/A MACON CROWNE PLAZA IBM
RETIREMENT
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
MACON HOTEL ASSOCIATES NO N/A MACON CROWNE PLAZA FIDELITY REAL
ESTATE
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
MACON HOTEL ASSOCIATES NO N/A MACON CROWNE PLAZA HOSPITALITY
CORP. OF
MACON
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
DEDHAM LODGING ASSOCIATES I, L.P. NO N/A RESIDENCE INN DEDHAM, MA BANKBOSTON,
N.A.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
LITTLE ROCK LODGING ASSOCIATES I, L.P. NO N/A RESIDENCE INN LITTLE ROCK, AK BANK ONE,
LOUISIANA,
N.A.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
BORROWER MAXIMUM AMOUNT UNFUNDED
AMOUNT OUTSTANDING COMMITMENT
------------------------------------ --------------- ----------------- ------------------
ALBANY HOTEL, INC.
APICO HILLS, INC. $265,000,000 $265,000,000 $0.00
APICO INNS OF GREEN TREE, INC.
APICO INNS OF PITTSBURGH, INC.
BRUNSWICK MOTEL ENTERPRISES, INC.
DOTHAN HOSPITALITY 3053, INC.
DOTHAN HOSPITALITY 3071, INC.
FAYETTEVILLE MOTEL ENTERPRISES, INC.
GADSDEN HOSPITALITY, INC.
SERVICO CENTER ASSOCIATES, LTD.
MINNEAPOLIS MOTEL ENTERPRISES, INC.
NH MOTEL ENTERPRISES, INC.
SERVICO AUSTIN, INC.
SERVICO CEDAR RAPIDS, INC.
SERVICO COLESVILLE, INC.
SERVICO COLUMBIA, INC.
SERVICO FLAGSTAFF, INC.
SERVICO FT. XXXXXX, INC.
SERVICO GRAND ISLAND, INC.
SERVICO HILTON HEAD, INC.
SERVICO HOUSTON, INC.
SERVICO JAMESTOWN, INC.
SERVICO WINDSOR, INC.
SERVICO MARKET CENTER, INC.
SERVICO MARYLAND, INC.
SERVICO METAIRIE, INC.
SERVICO NEW YORK, INC.
SERVICO NIAGARA FALLS, INC.
SERVICO NORTHWOODS, INC.
SERVICO PENSACOLA, INC.
SERVICO PENSACOLA 7200, INC.
SERVICO PENSACOLA 7330, INC.
SERVICO ROLLING XXXXXXX, INC.
SERVICO ROSEVILLE, INC.
SERVICO WEST PALM BEACH, INC.
SERVICO WINTER HAVEN, INC.
--------------------------------- ---- --------------- ----------------- ------------------
SHEFFIELD MOTEL ENTERPRISES, INC. $265,000,000 $265,000,000 $0.00
SERVICO SILVER SPRING, INC.
AMI OPERATING PARTNERS, L.P.
--------------------------------- ---- --------------- ----------------- ------------------
SERVICO CONCORD, INC.
AMI OPERATING PARTNERS, L.P. $72,000,000 $72,000,000 $0.00
ISLAND MOTEL ENTERPRISES, INC.
PENMOCO, INC.
--------------------------------- ---- --------------- ----------------- ------------------
ATLANTA-BOSTON LODGING, L.L.C. N/A $3,551,000 $0.00
--------------------------------- ---- --------------- ----------------- ------------------
LODGIAN, INC.
$175,000,000 $175,000,000 $0.00
--------------------------------- ---- --------------- ----------------- ------------------
MACON HOTEL ASSOCIATES N/A $1,662, 500 $0.00
--------------------------------- ---- --------------- ----------------- ------------------
MACON HOTEL ASSOCIATES N/A $2,712,500 $0.00
--------------------------------- ---- --------------- ----------------- ------------------
MACON HOTEL ASSOCIATES N/A $8,000,000 $0.00
--------------------------------- ---- --------------- ----------------- ------------------
DEDHAM LODGING ASSOCIATES I, L.P. N/A $5,575,000 $0.00
--------------------------------- ---- --------------- ----------------- ------------------
LITTLE ROCK LODGING ASSOCIATES I, L.P. N/A $5,716,881 $0.00
--------------------------------- ---- --------------- ----------------- ------------------
BORROWER RECOURSE GUARANTOR COLLATERAL LENDER
TO
BORROWER
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
COMFORT INN, SAN ANTONIO, TX
IMPAC HOTELS I, L.L.C. COMFORT SUITES GREENVILLE, SC
NO IMPAC HOTEL COURTYARD BUCKHEAD, GA NOMURA
GROUP, L.L.C. COURTYARD ABILENE, TX ASSET
COURTYARD FLORENCE, KY CAPITAL
(PERFORMANCE COURTYARD BENTONVILLE, AR CORPORATION
AND COMPLETION DOUBLE TREE CLUB PHILADELPHIA, PA
GUARANTY) DOUBLE TREE CLUB LOUISVILLE, KY
FRENCH QUARTER SUITES MEMPHIS, TN
FAIRFIELD INN VALDOSTA, GA
HOLIDAY INN VALDOSTA, GA
HOLIDAY INN SELECT IRVING, TX
HOLIDAY INN BIRMINGHAM, AL
HOLIDAY INN SUITES MARIETTA, GA
HOLIDAY INN SUNSPREE MYRTLE BEACH, SC
HOLIDAY INN EXPRESS NASHVILLE, TN
HOLIDAY INN ST. LOUIS NORTH, MO
HOLIDAY INN ST. XXXXX XXXX, MO
HOLIDAY INN SELECT CLEVELAND, OH
SUPER 8 MOTEL HAZARD, KY
SUPER 8 MOTEL PRESTONSBURG, KY
COURTYARD PADUCAH, KY
-------------- ------------------- ------------------- ---------------- ----------------------------------- ---------------
HOLIDAY INN CLARKSBURG, WV
HOLIDAY INN MORGANTOWN, WV
IMPAC HOTELS II, L.L.C. NO IMPAC HOTEL HOLIDAY INN FAIRMONT, WV NOMURA
GROUP, L.L.C. HOLIDAY INN FLORENCE, KY ASSET
HOLIDAY INN SYRACUSE, NY CAPITAL
(PERFORMANCE 5 HOLIDAY INN SELECTS WILSONVILLE, OR CORPORATION
AND COMPLETION 4 HOLIDAY INNS BOISE, ID
GUARANTY) HOLIDAY INN MEMPHIS, TN
HOLIDAY INN CINCINNATI, OH
XXXXXXX XXX XXXX XXXXXXXX, XX
DOUBLE TREE CLUB HOLLYWOOD, CA
COURTYARD TULSA, OK
HOLIDAY INN NORTH MIAMI, FL
HOLIDAY INN HAMBURG, NY
HOLIDAY INN RIVERSIDE, CA
MAYFAIR HOTEL COCONUT GROVE, FL
MARRIOTT DENVER, CO
MARRIOTT PORTLAND, OR
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
XXXXXXXXX XXX XXXXXX XXXX, XX
XXXXXXXXX XXX XXXXXX, XX
IMPAC HOTELS III, L.L.C. NO IMPAC HOTEL COURTYARD LAFAYETTE, LA NOMURA
GROUP, L.L.C. HOLIDAY INN ANCHORAGE, AK ASSET
4 FAIRFIELD INNS MERRIMACK, NH CAPITAL
(PERFORMANCE FAIRFIELD INN JACKSON, TN CORPORATION
AND COMPLETION FAIRFIELD INN AUGUSTA, GA
GUARANTY) FAIRFIELD INN BURLINGTON, VT
0 XXXXXXXXX XXXX XXX XXXXXX, XX
XXXXXXXXX XXXXXXXXX, XX
HILTON GARDEN LAKE OSWEGO, NY
COMFORT INN BOSTON, MA
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO HOTELS I, INC. NO SERVICO, INC. (AS HOLIDAY INN WEST PHOENIX, AZ COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO HOTELS II, INC. NO SERVICO, INC.(AS RADISSON HOTEL PHOENIX, AZ COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
EAST WASHINGTON ASSOCIATES, L.P. NO SERVICO, INC.(AS HOLIDAY INN SELECT AIRPORT COLUMN
TO NON-RECOURSE PHOENIX, AZ FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO HOTELS III, INC. NO SERVICO, INC.(AS HOLIDAY INN PALM DESERT, CA COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO FRISCO, INC. NO SERVICO, INC.(AS HOLIDAY INN FRISCO, CO XXXXXX
TO NON-RECOURSE BROTHERS
CARVE OUTS ONLY.)
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
MELBOURNE HOSPITALITY ASSOCIATES, NO SERVICO, INC.(AS HOLIDAY INN MELBOURNE, FL XXXXXX
X.X. TO NON-RECOURSE BROTHERS
CARVE OUTS ONLY.)
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
1075 HOSPITALITY, L.P. NO SERVICO, INC.(AS GMAC
TO NON-RECOURSE HOLIDAY INN AUGUSTA, GA COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
XXXXXX MOTEL ENTERPRISES, INC. YES N/A HOLIDAY INN BLOOMINGTON, IN LOCAL
FEDERAL
BANK
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO FORT XXXXX, INC. NO SERVICO, INC.(AS HILTON FORT XXXXX, IN COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
FORT XXXXX HOSPITALITY ASSOCIATES II, NO SERVICO, INC.(AS HOLIDAY INN & SUITES FORT XXXXX, IN XXXXXX
X.X. TO NON-RECOURSE BROTHERS
CARVE OUTS ONLY.)
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
NEW ORLEANS AIRPORT MOTEL NO SERVICO, INC.(AS RADISSON HOTEL NEW ORLEANS, LA COLUMN
ASSOCIATES, L.P. TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
NO SERVICO, INC.(AS GMAC
SIOUX CITY HOSPITALITY, L.P. TO NON-RECOURSE HILTON INN SIOUX CITY, IA COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
NO SERVICO, INC.(AS GMAC
SERVICO COUNCIL BLUFFS, INC. TO NON-RECOURSE BEST WESTERN COUNCIL BLUFFS, IA COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO, INC.(AS GMAC
SERVICO WEST DES MOINES, INC. NO TO NON-RECOURSE FOUR POINTS WEST DES MOINES, IA COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
MANHATTAN HOSPITALITY, L.P. NO SERVICO, INC. HOLIDAY INN MANHATTAN, KS CITY OF
(LIMITED TO MANHATTAN
$695,300)
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
LAWRENCE HOSPITALITY, L.P. NO SERVICO, INC. HOLIDAY INN LAWRENCE, KS CITY OF
(LIMITED TO LAWRENCE
$695,300)
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO WICHITA, INC. NO SERVICO, INC.(AS GMAC
TO NON-RECOURSE HOLIDAY INN WICHITA AIRPORT, KS COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO OMAHA CENTRAL, INC. NO SERVICO, INC.(AS GMAC
TO NON-RECOURSE BEST WESTERN CENTRAL OMAHA, NE COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO OMAHA, INC. NO SERVICO, INC.(AS GMAC
TO NON-RECOURSE FOUR POINTS OMAHA, NE COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
WORCESTER HOSPITALITY ASSOCIATES, L.P. NO SERVICO, INC.(AS CROWNE PLAZA WORCESTER, MA XXXXXX
TO NON-RECOURSE BROTHERS
CARVE OUTS ONLY.)
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO HOTELS IV, INC. NO SERVICO, INC.(AS HOLIDAY INN SANTA FE, NM COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
BRECKSVILLE HOSPITALITY, L.P. NO SERVICO, INC.(AS GMAC
TO NON-RECOURSE HOLIDAY INN RICHFIELD, OH COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
APICO INNS OF PITTSBURGH, INC. NO SERVICO, INC.(AS HOLIDAY INN MONROEVILLE, PA XXXXXX
TO NON-RECOURSE BROTHERS
CARVE OUTS ONLY.)
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
MOON AIRPORT MOTEL, INC. NO SERVICO, INC.(AS CLARION-ROYCE PITTSBURGH, PA COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
XXXXXXXX MOTEL, INC. NO SERVICO, INC.(AS HOLIDAY INN XXXXXXXX ROAD, PA COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
WILPEN, INC. NO SERVICO, INC.(AS XXXXXX XXXXXXX PENN HOTEL, PA COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
WASHINGTON MOTEL ENTERPRISES, INC. NO SERVICO, INC.(AS HOLIDAY INN MEADOWLANDS, PA COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SAGINAW HOSPITALITY, L.P. NO SERVICO, INC.(AS CROWNE PLAZA SAGINAW, MI SAGINAW
TO NON-RECOURSE HOTEL
CARVE OUTS ONLY.) INVESTORS
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
SERVICO LANSING, INC. NO SERVICO, INC.(AS GMAC
TO NON-RECOURSE HOLIDAY INN WEST LANSING, MI COMMERCIAL
CARVE OUTS ONLY.) MORTGAGE
CORP.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
HILTON HEAD MOTEL ENTERPRISES, INC. NO SERVICO, INC.(AS HOLIDAY INN HILTON HEAD, SC COLUMN
TO NON-RECOURSE FINANCIAL,
CARVE OUTS ONLY.) INC.
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
RALEIGH-DOWNTOWN ENTERPRISES, INC. YES X/X XXXXXXX XXX XXXXXXX XXXXXXXX, XX CREST MOTEL
--------------------------------- ------------------- ---------------- ----------------------------------- -------------
BORROWER MAXIMUM AMOUNT UNFUNDED
AMOUNT OUTSTANDING COMMITMENT
--------------------------------- ------------ ----------------- ------------------
IMPAC HOTELS I, L.L.C.
N/A $132,459,000 $0.00
-------------- ------------------- --------------- ----------------- --------------
IMPAC HOTELS II, L.L.C. $163,500,000 $152,595,672 $10,904,328
--------------------------------- --------------- ----------------- ------------------
ORIGINAL
AMOUNT UP TO
IMPAC HOTELS III, L.L.C. $100,000,000 $35,353,044 $33,746,956
($69 MILLION
APPROVED AND
TIME FOR
APPROVAL OF
ADVANCES IN
EXCESS OF $69
MILLION HAS
EXPIRED)
--------------------------------- --------------- ----------------- ------------------
SERVICO HOTELS I, INC.
N/A $4,410,165 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO HOTELS II, INC. N/A $2,439,665 $0.00
--------------------------------- --------------- ----------------- ------------------
EAST WASHINGTON ASSOCIATES, L.P. N/A $10,314,252 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO HOTELS III, INC. N/A $1,782,832 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO FRISCO, INC. N/A $5,077,070 $0.00
--------------------------------- --------------- ----------------- ------------------
MELBOURNE HOSPITALITY ASSOCIATES, N/A $5,525,365 $0.00
L.P.
--------------------------------- --------------- ----------------- ------------------
1075 HOSPITALITY, L.P.
N/A $3,811,296 $0.00
--------------------------------- --------------- ----------------- ------------------
XXXXXX MOTEL ENTERPRISES, INC. N/A $3,818,138 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO FORT XXXXX, INC. N/A $5,442,330 $0.00
--------------------------------- --------------- ----------------- ------------------
FORT XXXXX HOSPITALITY ASSOCIATES I N/A $1,874,678 $0.00
L.P.
--------------------------------- --------------- ----------------- ------------------
NEW ORLEANS AIRPORT MOTEL N/A $4,973,164 $0.00
ASSOCIATES, L.P.
--------------------------------- --------------- ----------------- ------------------
SIOUX CITY HOSPITALITY, L.P. N/A $5,654,543 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO COUNCIL BLUFFS, INC. N/A $1,531,708 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO WEST DES MOINES, INC. N/A $2,994,905 $0.00
--------------------------------- --------------- ----------------- ------------------
MANHATTAN HOSPITALITY, L.P. N/A $6,470,000 $0.00
--------------------------------- --------------- ----------------- ------------------
XXXXXXXX HOSPITALITY, L.P. N/A $6,470,000 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO WICHITA, INC.
N/A $4,771,294 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO OMAHA CENTRAL, INC.
N/A $4,800,656 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO OMAHA, INC.
N/A $2,383,200 $0.00
--------------------------------- --------------- ----------------- ------------------
WORCESTER HOSPITALITY ASSOCIATES, L N/A $7,590,959 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO HOTELS IV, INC. N/A $5,442,330 $0.00
--------------------------------- --------------- ----------------- ------------------
BRECKSVILLE HOSPITALITY, L.P.
N/A $2,928,074 $0.00
--------------------------------- --------------- ----------------- ------------------
APICO INNS OF PITTSBURGH, INC. N/A $5,010,951 $0.00
--------------------------------- --------------- ----------------- ------------------
MOON AIRPORT MOTEL, INC. N/A $3,377,998 $0.00
--------------------------------- --------------- ----------------- ------------------
XXXXXXXX MOTEL, INC. N/A $3,663,554 $0.00
--------------------------------- --------------- ----------------- ------------------
WILPEN, INC. N/A $17,640,657 $0.00
--------------------------------- --------------- ----------------- ------------------
WASHINGTON MOTEL ENTERPRISES, INC. N/A $3,940,998 $0.00
--------------------------------- --------------- ----------------- ------------------
SAGINAW HOSPITALITY, L.P. N/A $2,043,934 $0.00
--------------------------------- --------------- ----------------- ------------------
SERVICO LANSING, INC.
N/A $5,555,228 $0.00
--------------------------------- --------------- ----------------- ------------------
HILTON HEAD MOTEL ENTERPRISES, INC. N/A $7,318,996 $0.00
--------------------------------- --------------- ----------------- ------------------
RALEIGH-DOWNTOWN ENTERPRISES, INC. N/A $2,107,129 N/A
(CAPITAL LEASE
OBLIGATION)
--------------------------------- --------------- ----------------- ------------------
BORROWER LOCATION RECOURSE GUARANTOR COLLATERAL LENDER
TO
BORROWER
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
HOLIDAY INN SHEFFIELD, AL
SERVICO, INC. RADISSON PHOENIX, AZ
XXXXXX XXXXXXX FLAGSTAFF, AZ YES N/A MISC. CHARTER
HOLIDAY INN PALM DESERT, CA FF&E FINANCIAL, INC.
OMNI HOTEL WEST PALM BEACH, FL
HOLIDAY INN MELBOURNE, FL
HOLIDAY INN JEKYLL ISLAND, GA
HOLIDAY INN BLOOMINGTON, IN
FORT XXXXX XXXXXX, IN
HOLIDAY INN FORT XXXXX, IN
RADISSON NEW ORLEANS, LA
QUALITY HOTEL METAIRIE, LA
HOLIDAY INN ST. XXXX, MN
OMNI ALBANY HOTEL, NY
HOLIDAY INN FAYETTEVILLE, NC
HOLIDAY INN RALEIGH, NC
XXXXXX XXXXXXX PITTSBURGH, PA
HOLIDAY INN GREENTREE, PA
CLARION-ROYCE HOTEL, PA
HOLIDAY INN MEADOWLANDS, PA
HOLIDAY INN HILTON HEAD, SC
HOLIDAY INN LAREDO, TX
HOLIDAY INN AUSTIN, TX
HOLIDAY INN DOTHAN, AL
HOLIDAY INN PHOENIX WEST, AZ
SERVICO, INC. XXXXXXX XXX XXXXXXX XXXXXXX XXXX, XX YES N/A MISC. LYON CREDIT
SERVICO HOLIDAY INN PALM DESERT, CA FF&E
MANAGEMENT HOLIDAY INN EXPRESS PENSACOLA, FL
CORP. HOLIDAY INN UNIVERSITY MALL, FL
HOLIDAY INN MELBOURNE, FL
HOLIDAY INN EXPRESS FT. XXXXXX, FL
HOLIDAY INN JEKYLL ISLAND, GA
HOLIDAY INN AUGUSTA, GA
HOLIDAY INN BLOOMINGTON, IN
HOLIDAY INN FORT XXXXX, IN
DAYS INN SILVER SPRING, MD
CROWNE PLAZA SIOUX CITY, IA
HOLIDAY INN ST. XXXX, MN
HOLIDAY INN MANHATTAN, KA
HOLIDAY INN XXXXXXXX, XX
CROWNE PLAZA WORCESTER, MA
HOLIDAY INN SANTA FE, NM
OMNI ALBANY HOTEL, NY
HOLIDAY INN FAYETTEVILLE, NC
HOLIDAY INN RICHFIELD, OH
HOLIDAY INN MONROEVILLE, PA
HOLIDAY INN GREENTREE, PA
HOLIDAY INN PARKWAY EAST, PA
CLARION-ROYCE HOTEL, PA
HOLIDAY INN XXXXXXXX, PA
HOLIDAY INN MEADOWLANDS, PA
NORTHFIELD HILTON, MI
CROWNE PLAZA SAGINAW, MI
HOLIDAY INN XXXXXX XXXX, XX
XXXX XXXXXX XXXXXX XXXX, XX
HOLIDAY INN LAREDO, TX
HOLIDAY INN AUSTIN, TX
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
HOLIDAY INN DOTHAN, AL
SERVICO HAMPTON INN DOTHAN, AL
MANAGEMENT HOLIDAY INN GADSDEN, AL YES N/A MISC. FINANCIAL
CORP. XXXXXX XXXXXXX FLAGSTAFF AZ, FF&E MARKETING
XXXXXXX XXX XXXXXXX XXXXXXX XXXX, XX SERVICES, INC.
XXXXXXX XXX XXXX XXXXXX, XX
OFFICE BUILDING & HOTEL
HOLIDAY INN MELBOURNE, FL
HOLIDAY INN BLOOMINGTON, IN
RADISSON NEW ORLEANS, LA
HOLIDAY INN ST. XXXX, MN
CROWNE PLAZA WORCESTER, MA
OMNI ALBANY HOTEL, NY
HOLIDAY INN GREENTREE, PA
CLARION-ROYCE HOTEL, PA
HOLIDAY INN XXXXXXXX, PA
HOLIDAY INN AUSTIN, TX
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
HOLIDAY INN SHEFFIELD, AL
HOLIDAY INN GADSDEN, AL
SERVICO, INC. HOLIDAY INN PHOENIX WEST, AZ YES N/A MISC. GELCO
RADISSON PHOENIX, AZ FF&E CORPORATION D/B/A
SERVICO OMNI HOTEL WEST PALM BEACH, FL GE CAPITAL FLEET
MANAGEMENT HOLIDAY INN MELBOURNE, FL SERVICES
CORP. HOLIDAY INN BLOOMINGTON, IN
FT. XXXXX XXXXXX, IN
RADISSON XXX XXXXXXX, XX
XXXXXX XXXXX XXXXX XXXX, XX
BEST WESTERN COUNCIL BLUFFS, IA
FOUR POINTS WEST DES MOINES, IA
HOLIDAY INN XXXXXXXX, XX
HOLIDAY INN WICHITA, KA
BEST WESTERN CENTRAL OMAHA, NE
FOUR POINTS OMAHA, NE
HOLIDAY INN FAYETTEVILLE, NC
HOLIDAY INN HILTON HEAD, SC
WESTERN REGION
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
BRUNSWICK MOTEL HOLIDAY INN BRUNSWICK, GA YES N/A MISC. TELERENT LEASING
ENTERPRISES, INC. FF&E CORPORATION
SERVICO, INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
KDS QUALITY HOTEL METAIRIE, LA YES N/A MISC. TELERENT LEASING
CORPORATION FF&E CORPORATION
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
KDS HOLIDAY INN AUSTIN, TX YES N/A MISC. TELERENT LEASING
CORPORATION FF&E CORPORATION
SERVICO, INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SHEFFIELD MOTEL HOLIDAY INN SHEFFIELD, AL YES N/A MISC. TELERENT LEASING
ENTERPRISES, INC. FF&E CORPORATION
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SERVICO XXXXXXX XXX XXXXXXX XXXXXXX XXXX, XX YES N/A MISC. TELERENT LEASING
MANAGEMENT FF&E CORPORATION
CORP. AS AGENT
FOR EAST
WASHINGTON
HOSPITALITY, L.P.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SERVICO HOLIDAY INN FORT XXXXX, IN YES N/A MISC. TELERENT LEASING
MANAGEMENT FF&E CORPORATION
CORP. AS AGENT
FOR FORT XXXXX
HOSPITALITY
ASSOCIATES II,
L.P.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
XXXXXXX XXXXXX XXXXX XXXXXXXXX, XX YES N/A MISC. TELERENT LEASING
MANAGEMENT FF&E CORPORATION
CORP. AS AGENT
FOR WORCESTER
HOSPITALITY
ASSOCIATES, L.P.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
APICO INNS OF HOLIDAY INN MONROEVILLE, PA YES N/A MISC. TELERENT LEASING
PITTSBURGH, INC. FF&E CORPORATION
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
APICO HILLS, INC. XXXXXXX XXX XXXXXXX XXXX, XX YES N/A MISC. TELERENT LEASING
FF&E CORPORATION
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SERVICO HOLIDAY INN XXXXXXXX, PA YES N/A MISC. TELERENT LEASING
MANAGEMENT FF&E CORPORATION
CORP. AS AGENT
FOR SOUTHFIELD
HOTEL GROUP II,
L.P.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SERVICO BEST WESTERN CHARLESTON, SC YES N/A MISC. TELERENT LEASING
NORTHWOODS, INC. FF&E CORPORATION
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SHEFFIELD MOTEL HOLIDAY INN SHEFFIELD, AL YES N/A MISC. M&SD
ENTERPRISES, INC. FF&E
SERVICO FORT FT. XXXXX XXXXXX, IN
XXXXX, INC.
SERVICO METAIRIE, QUALITY HOTEL METAIRIE, LA
INC.
MINNEAPOLIS HOLIDAY INN ST. XXXX, MN
MOTEL
ENTERPRISES, INC.
RALEIGH HOLIDAY INN RALEIGH, NC
DOWNTOWN
ENTERPRISES, INC.
APICO INNS OF HOLIDAY INN GREENTREE, PA
GREENTREE, INC.
APICO HILLS, INC. XXXXXXX XXX XXXXXXX XXXX, XX
MOON AIRPORT CLARION-ROYCE HOTEL, PA
MOTEL, INC.
SERVICO HOLIDAY INN XXXXXXXX, PA
MANAGEMENT
CORP. AS AGENT
FOR SOUTHFIELD
HOTEL GROUP II,
L.P.
NH MOTEL NORTHFIELD HILTON, MI
ENTERPRISES, INC.
SERVICO AUSTIN, HOLIDAY INN AUSTIN, TX
INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SERVICO HOLIDAY INN FORT XXXXX, IN YES N/A MISC. SANLYN &
MANAGEMENT FF&E ASSOCIATES
CORP. AS AGENT
FOR FORT XXXXX
HOSPITALITY
ASSOCIATES II,
L.P.
SERVICO CROWNE PLAZA WORCESTER, MA (2)
MANAGEMENT
CORP. AS AGENT
FOR WORCESTER
HOSPITALITY
ASSOCIATES, L.P.
NH MOTEL NORTHFIELD HILTON, MI
ENTERPRISES, INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
XXXXXX MOTEL HOLIDAY INN BLOOMINGTON, IN YES N/A MISC. MULTI-SYSTEMS,
ENTERPRISES, INC. FF&E INC.
SERVICO FORT FT. XXXXX XXXXXX, IN
XXXXX, INC.
APICO INNS OF HOLIDAY INN GREENTREE, PA
GREENTREE, INC.
WASHINGTON HOLIDAY INN MEADOWLANDS, PA
MOTEL
ENTERPRISES, INC.
SERVICO BEST WESTERN CHARLESTON, SC
NORTHWOODS, INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
MINNEAPOLIS HOLIDAY INN ST. XXXX, MN YES N/A MISC. METLIFE CAPITAL
MOTEL FF&E
ENTERPRISES, INC.
RALEIGH HOLIDAY INN RALEIGH, NC
DOWNTOWN
ENTERPRISES, INC.
APICO INNS OF HOLIDAY INN MONROEVILLE, PA
PITTSBURGH, INC.
WASHINGTON HOLIDAY INN MEADOWLANDS, PA
MOTEL
ENTERPRISES, INC.
SERVICO AUSTIN, HOLIDAY INN AUSTIN, TX
INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
WILPEN, INC. XXXXXX XXXXXXX PENN, PA YES N/A MISC. XXXXXX FINANCIAL
FF&E
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SERVICO HOLIDAY INN FORT XXXXX, IN YES N/A MISC. PRIME LEASING
MANAGEMENT FF&E
CORP. AS AGENT
FOR FORT XXXXX
HOSPITALITY
ASSOCIATES II,
L.P.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
SERVICO HOTELS XXXXXXX XXX XXXX XXXXXX, XX YES N/A MISC. GIAC
III, INC. FF&E
SERVICO HOTELS HOLIDAY INN SANTA FE, NM
IV, INC.
APICO INNS OF HOLIDAY INN MONROEVILLE, PA
PITTSBURGH, INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
APICO INNS OF XXXXXX XXXXXXX PITTSBURGH, PA YES N/A MISC. MODERN
PENNSYLVANIA, FF&E COLLECTION
INC. ASSOCIATION
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
WILPEN, INC. XXXXXX XXXXXXX PENN, PA YES N/A MISC. NTFC
FF&E
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
WASHINGTON HOLIDAY INN MEADOWLANDS, PA YES N/A MISC. DOLLAR BANK
MOTEL FF&E LEASING
ENTERPRISES, INC.
----------------- ------------------------------------ --------------- ---------------- ------------------ -----------------
AMOUNT UNFUNDED
BORROWER OUTSTANDING COMMITMENT
---------------- ------------------ ------------------
Servico, Inc. $507,577 $0.00
SERVICO, INC. $893,751 $0.00
SERVICO
MANAGEMENT
CORP.
----------------- ------------------ ------------------
SERVICO
MANAGEMENT $225,311 $0.00
CORP.
----------------- ------------------ ------------------
SERVICO, INC. $96,840 $0.00
SERVICO
MANAGEMENT
CORP.
----------------- ------------------ ------------------
BRUNSWICK MOTEL $21,531 $0.00
ENTERPRISES, INC.
SERVICO, INC.
----------------- ------------------ ------------------
KDS $36,104 $0.00
CORPORATION
----------------- ------------------ ------------------
KDS $37,750 $0.00
CORPORATION
SERVICO, INC.
----------------- ------------------ ------------------
SHEFFIELD MOTEL $32,063 $0.00
ENTERPRISES, INC.
----------------- ------------------ ------------------
SERVICO $50,508 $0.00
MANAGEMENT
CORP. AS AGENT
FOR EAST
WASHINGTON
HOSPITALITY, L.P.
----------------- ------------------ ------------------
SERVICO $76,061 $0.00
MANAGEMENT
CORP. AS AGENT
FOR FORT XXXXX
HOSPITALITY
ASSOCIATES II,
L.P.
----------------- ------------------ ------------------
SERVICO $43,869 $0.00
MANAGEMENT
CORP. AS AGENT
FOR WORCESTER
HOSPITALITY
ASSOCIATES, L.P.
----------------- ------------------ ------------------
APICO INNS OF $68,495 $0.00
PITTSBURGH, INC.
----------------- ------------------ ------------------
APICO HILLS, INC. $4,578 $0.00
----------------- ------------------ ------------------
SERVICO $39,747 $0.00
MANAGEMENT
CORP. AS AGENT
FOR SOUTHFIELD
HOTEL GROUP II,
L.P.
----------------- ------------------ ------------------
SERVICO $2,458 $0.00
NORTHWOODS, INC.
----------------- ------------------ ------------------
SHEFFIELD MOTEL $233,642 $0.00
ENTERPRISES, INC.
SERVICO FORT
XXXXX, INC.
SERVICO METAIRIE,
INC.
MINNEAPOLIS
MOTEL
ENTERPRISES, INC.
RALEIGH
DOWNTOWN
ENTERPRISES, INC.
APICO INNS OF
GREENTREE, INC.
APICO HILLS, INC.
MOON AIRPORT
MOTEL, INC.
SERVICO
MANAGEMENT
CORP. AS AGENT
FOR SOUTHFIELD
HOTEL GROUP II,
L.P.
NH MOTEL
ENTERPRISES, INC.
SERVICO AUSTIN,
INC.
----------------- ------------------ ------------------
SERVICO $57,599 $0.00
MANAGEMENT
CORP. AS AGENT
FOR FORT XXXXX
HOSPITALITY
ASSOCIATES II,
L.P.
SERVICO
MANAGEMENT
CORP. AS AGENT
FOR WORCESTER
HOSPITALITY
ASSOCIATES, L.P.
NH MOTEL
ENTERPRISES, INC.
----------------- ------------------ ------------------
XXXXXX MOTEL $23,850 $0.00
ENTERPRISES, INC.
SERVICO FORT
XXXXX, INC.
APICO INNS OF
GREENTREE, INC.
WASHINGTON
MOTEL
ENTERPRISES, INC.
SERVICO
NORTHWOODS, INC.
----------------- ------------------ ------------------
MINNEAPOLIS $248,613 $0.00
MOTEL
ENTERPRISES, INC.
RALEIGH
DOWNTOWN
ENTERPRISES, INC.
APICO INNS OF
PITTSBURGH, INC.
WASHINGTON
MOTEL
ENTERPRISES, INC.
SERVICO AUSTIN,
INC.
----------------- ------------------ ------------------
WILPEN, INC. $62,631 $0.00
----------------- ------------------ ------------------
SERVICO $227,608 $0.00
MANAGEMENT
CORP. AS AGENT
FOR FORT XXXXX
HOSPITALITY
ASSOCIATES II,
L.P.
----------------- ------------------ ------------------
SERVICO HOTELS $1,427 $0.00
III, INC.
SERVICO HOTELS
IV, INC.
APICO INNS OF
PITTSBURGH, INC.
----------------- ------------------ ------------------
APICO INNS OF $282 $0.00
PENNSYLVANIA,
INC.
----------------- ------------------ ------------------
WILPEN, INC. $4,731 $0.00
----------------- ------------------ ------------------
WASHINGTON $1,622 $0.00
MOTEL
ENTERPRISES, INC.
----------------- ------------------ ------------------
ADDITIONAL GUARANTEE OBLIGATIONS:
4. Servico, Inc. and Lodgian, Inc. have guaranteed the non-recourse
carve-outs in the existing non-recourse mortgage debt otherwise scheduled above
and the Xxxxxx debt extended to the European Venture.
5. Servico, Inc. and Lodgian, Inc. have (and may in the future) provide(d)
indemnities to title companies with respect to taxes and liens encumbering
properties of the Borrower and other subsidiaries of Servico, Inc. and Lodgian,
Inc. over which the title insurers have provided affirmative coverages.
ADDITIONAL DEBT TO BE INCURRED
Servico, Inc. and Credit Lyon have been negotiating a $3,000,000 FF&E line
of credit which is not yet in place.
