Schedule to Exhibit 10.26
Suburban Lodges, Inc.
A security agreement in favor of Finova Realty Capital Inc.
with substantially the same terms as this Exhibit 10.26 for each of the
following groups of properties are not being separately filed:
PROPERTY NAME XXXXXXX XXXXXX XXXX, XXXXX
Xxxxx 0*
Xxxxxx Xxxx 000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxx, XX
Roswell 0000 Xxxxxxx Xxxx Xxxxxx Xxxxxxx, XX
Greenville-Xxxxxxx Road 000 Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx, XX
Dallas North Central 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx, XX
South Dayton 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxx, XX
Group 2
Lilburn/Hwy 78 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx, XX
Mableton 000 Xxxxx Xxxx Xxxxx Xxxx Xxxxxxxx, Xx
Preston Highway 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx, XX
Taylors 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxxx, XX
Chesapeake 0000 Xxx Xxxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx, XX
UNC Charlotte 000 Xxxxx Xxxxx Xxxx Xxxx Xxxxxxxxx, XX
Group 3
Norcross 0000 Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx, XX
Jonesboro/Xxxx Blvd. 0000 Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxxxx, XX
Virginia Beach 000 Xxxxx Xxxxxxxxxxxx Xxxx. Xxxxxxxx Xxxxx, XX
Fairfield 0000 Xxxxxxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxxx, XX
Xxxxxxxx/I77 Charlotte 000 Xxxxxxxx Xxxx Xxxxxxxxxxx Xxxxxxxxx, XX
Xxxxxx Industrial 000 Xxxxxxxxxxx Xxxxx, XX Xxxxxx Xxxxxxx, XX
Group 0
Xxxxxx Xxxxx 0000 Xxxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx, XX
Douglasville 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxxxx, XX
Matthews 0000 Xxxx Xxxxxxxxxxxx Xxxx. Xxxxxxxx, XX
Columbus/Eastland 0000 Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx, XX
Indianapolis, NW 0000 Xxxx 00xx Xxxxxx Xxxxxx Xxxxxxxxxxxx, XX
Group 0
Xxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxx, XX
Gwinnett Place 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx, XX
Columbus/Northland 0000 Xxxxxx Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxx, XX
Oxmoor 00 Xxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx, XX
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is made as of
December 29, 1998, by SLAM PROPERTIES I, L.L.C., a Georgia limited
liability company, having an address at 000 Xxxxxxxx Xxxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000, Attn: Corporate Secretary ("Borrower"),
to FINOVA REALTY CAPITAL INC., a Delaware corporation, having an
address at c/o Midland Loan Services, L.P., 000 Xxxx Xxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 (together with its successors and assigns
"Lender").
W I T N E S S E T H:
WHEREAS, Borrower has requested that Lender make a loan to
Borrower in the aggregate principal amount of FOURTEEN MILLION SEVEN
HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($14,780,000) (the "Loan");
WHEREAS, Lender has agreed to make the Loan to Borrower upon,
and subject to, the terms and conditions set forth herein and in the
other Loan Documents (as hereinafter defined);
WHEREAS, concurrently herewith, Borrower has delivered to
Lender its Promissory Note of even date herewith in the amount of the
Loan (as the same may hereafter from time to time be modified,
amended, replaced, restated, supplemented, renewed, or extended, and
any note(s) issued in exchange therefor or in substitution thereof,
collectively, the "Note") in evidence of the Loan, with interest from
the date hereof at the rates set forth in the Note, such interest and
the principal amount thereof to be payable in accordance with the
terms and conditions provided in the Note;
WHEREAS, Borrower has delivered those certain mortgage and
security agreements, deed of trust and security agreements, deed to
secure debt and security agreements or similar real estate security
agreements (the "Security Instruments"), dated as of the date hereof,
to Lender, encumbering Borrower's interest in those certain parcels of
land situated in the County of Xxxxxx, State of Georgia, County of
Xxxxxxx, State of Georgia, County of Greenville, State of South
Carolina, County of Dallas, State of Texas, and County of Xxxxxxxxxx,
State of Ohio, as more particularly described in Exhibit A attached
hereto and made a part hereof, together with the buildings,
structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter
located thereon (collectively, the "Property");
WHEREAS, Lender has agreed to make the Loan to Borrower
upon, and subject to, the terms and conditions set forth herein and in
the Note, the Security Instruments and any and all of the other
documents, instruments and agreements now or hereafter executed by
Borrower and/or others and by or in favor of Lender, which wholly or
partially secure or guarantee payment of the Loan or which from time
to time may evidence any portion of the Loan (as each of the same may
be amended, modified, extended, renewed, restated, consolidated,
substituted, supplemented or replaced from time to time, collectively,
the "Loan Documents");
NOW THEREFORE, in consideration of the making of the Loan and
other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Borrower hereby agrees,
covenants, represents and warrants with and to Lender as follows:
1. Grant of Security Interest. As security for (i) the
payment by Borrower of all interest, principal and other sums due and
payable or hereafter becoming due and payable pursuant to the
provisions of the Note, the Security Instruments, the other Loan
Documents and this Security Agreement (said principal, interest and
other sums, collectively, the "Debt"), and (ii) the observance and
performance by Borrower of all of the terms, covenants and provisions
of the Note, the Security Instruments, the other Loan Documents and
this Security Agreement on the part of Borrower to be observed and
performed, Borrower hereby grants and assigns to Lender a security
interest in all of the furniture, fixtures, equipment (the "FF&E") and
other personal property (the "Personalty") described in Exhibit B
attached hereto and made a part hereof, together with replacements of,
additions to and substitutions for any of the FF&E or Personalty,
whenever acquired, and the proceeds of any of the FF&E and Personalty,
both cash and non-cash (collectively, the "Collateral").
2. Books and Records. Borrower shall keep or cause to
be kept accurate and complete books, records and accounts in
accordance with generally accepted accounting practices consistently
applied with respect to the financial affairs of Borrower, including,
without limitation, the financial affairs of Borrower which relate to
the Collateral. Borrower represents and warrants to Lender that (i)
its principal office has an address as stated above and (ii) all books
and records with respect to the financial affairs of Borrower,
including, without limitation, the financial affairs of Borrower which
relate to the Collateral, are presently kept at said address or at the
Property. Borrower shall immediately notify Lender of any change in
location of the place where Borrower's books and records are kept.
Borrower shall, within fifteen (15) days after request and at its sole
cost and expense, but in no event more than one (1) time per year,
deliver to Lender certified copies of any of such books and records as
may be requested by Lender. Lender shall have the right from time
to time at all times during normal business hours to examine such
books, records and accounts at the office of Borrower and to make
copies or extracts thereof as Lender shall desire, after five (5) days
written notice to Borrower, and in no event more than one (1) time per
year. Borrower shall, from time to time, within fifteen (15) days
after request and at its sole cost and expense, deliver to Lender such
reasonable information, reports and additional financial information
with respect to the financial affairs of Borrower and the Collateral
as Lender shall reasonably request.
3. Principal Office; Records. Borrower shall not
establish a new location for its principal office until (i) it shall
have given to Lender not less than 30 days' prior written notice of
its intention so to do, clearly describing such new location and
providing such other information in connection therewith as Lender
may reasonably request, and (ii) with respect to such new location, it
shall have taken all action, satisfactory to Lender, to maintain the
security interest of Lender in the Collateral granted hereby at all
times fully perfected and in full force and effect.
4. Trade Names; Change of Name. Borrower does not have
or operate in any jurisdiction under, or in the preceding 12 months
has had or has operated in any jurisdiction under, any trade names,
fictitious names or other names except its legal name.
5. Security for Payment of the Debt. The security
interest created by this Security Agreement is given as security for
(i) the payment to Lender of all of the Debt, (ii) the discharge and
performance of all obligations and promises of Borrower contained in
the Note, the Security Instruments, other Loan Documents, and this
Security Agreement, and all extensions, modifications, restatements
and renewals thereof, and (iii) all other liabilities, direct and
indirect, absolute or contingent, now existing or hereafter arising,
from Borrower to Lender.
6. Protection of Collateral. Borrower shall take any
and all steps which may be necessary or required to preserve and
protect the Collateral during the continuance of Lender's security
interest in the Collateral, and in pursuance thereof Borrower
covenants and agrees that the Collateral:
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(a) shall not be misused, wasted or allowed to deteriorate;
(b) shall at all times be insured against fire (including so-
called extended coverage) and theft in accordance with the terms of
the Security Instruments, and against such other risks as Lender may
reasonably require, in such amounts, with such companies, under such
policies, in such form and for such periods as shall be reasonably
satisfactory to Lender. In the event of damage to or destruction of
the Collateral as a result of an insured casualty, Lender shall apply
the proceeds, if any, of such insurance in accordance with the terms
and conditions of the Security Instruments; and
(c) shall be kept at the Property except if being repaired
and returned or being replaced by an article of equal suitability and
value free of all liens, security interests and encumbrances.
7. Protection of Security Interest. Borrower shall
take any and all steps necessary or required to preserve and protect
the priority of the security interest granted herein, and in pursuance
of this obligation, Borrower agrees that:
(a) Borrower shall not sell (except as may be permitted
pursuant to the provisions of the Security Instruments or herein),
mortgage, encumber, transfer, lease or otherwise dispose (except as
may be permitted pursuant to the provisions of the Security
Instruments or the other Loan Documents or herein) of any of the
Collateral or any interest therein, or offer to do so, without the
prior written consent of Lender, which consent may be withheld in
Lender's sole but reasonable discretion, or permit anything to be done
that may impair the value of any of the Collateral, except, that
Borrower shall be entitled to remove any items of Collateral provided
that same are replaced with items of Collateral which have at least
equal suitability and value to the items so removed on the date of
their removal;
(b) Borrower shall pay promptly when due any taxes and
assessments upon the Collateral or for the use or operation of the
Collateral;
(c) Borrower shall execute, upon request of Lender, financing
statements under the Uniform Commercial Code of the States of Georgia,
South Carolina, Texas, or Ohio, as applicable (hereinafter referred to
as the "Uniform Commercial Code") and any other documents requested by
Lender to effectively implement the purposes of this Security
Agreement;
(d) Lender may from time to time, at its option, perform any
agreement or obligation of Borrower hereunder which Borrower shall
fail to perform and take any action which Lender deems necessary for
the maintenance or preservation of any of the Collateral or its
security interest therein; and
(e) any amounts incurred by Lender for reasonable costs and
expenses (including without limitation reasonable attorney's fees and
reasonable out-of-pocket expenses) in connection with any action taken
by Lender to enforce Lender's rights under this Security Agreement,
shall, at the option of Lender, become part of the principal amount
due under the Note and shall become part of the Debt, and on demand by
Lender, Borrower shall pay any such amount to Lender, together with
interest thereon at the Default Rate (as defined in the Security
Instruments).
8. Representations and Warranties of Borrower.
Borrower continually represents and warrants that: (a) except with
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Lender's prior consent, no other security agreement or financing
statement covering the Collateral or any part thereof, have been made
or filed and no security interest, other than the one herein created,
have been created, attached or perfected in the Collateral or in any
part thereof, except for financing statements arising in the normal
course of business; (b) no dispute, set-off, counterclaim or defense
exists on the part of Borrower or any other party respecting any part
of the Collateral; (c) all information supplied and statements made to
Lender in connection with the identification and description of the
Collateral are true and correct; (d) title to the Collateral in
Borrower is absolute and unconditional; (e) the Collateral is in good
order and condition for its intended primary use as part of the
Property; and (f) the Collateral is located at the Property.
9. Miscellaneous Covenants of Borrower. Borrower
shall: (a) promptly furnish Lender with any information or documents
which Lender may reasonably request concerning the Collateral; (b)
promptly notify Lender of any change in any fact or circumstances
warranted or represented by Borrower in this Security Agreement or in
any other writing furnished by Borrower to Lender in connection with
the Collateral or the Debt; (c) promptly notify Lender of any claim,
action or proceeding affecting title, or any other matter relating to
the Collateral, or any part thereof, or the security interest created
herein, and, at the request of Lender, appear in and defend, at
Borrower's expense, any such claim, action or proceeding; (d) promptly
make such further assurances necessary to prove title to the
Collateral in Borrower as may be reasonably required; (e) promptly
furnish Lender with true copies of all notices of default sent by or
received by Borrower with respect to any agreements relating to the
Collateral; and (f) not, without the prior written consent of Lender,
create any other security interest in, mortgage, or otherwise encumber
the Collateral, or any part thereof, or permit the same to be or
become subject to any lien, attachment, execution, sequestration,
other legal or equitable process, or encumbrance of any kind or
character, except the security interests created in this Security
Agreement, the Security Instruments and the other Loan Documents.
10. Events of Default. At the option of Lender and
without necessity of demand or notice, the Debt shall immediately
become due and payable upon occurrence of any one of the following
events (each of which is hereinafter referred to as an "Event of
Default"):
(a) The occurrence of any Event of Default under the Security
Instruments;
(b) Failure by Borrower to pay as and when due and payable
any sum as required by this Security Agreement beyond the applicable
grace periods set forth herein for such payments, if any;
(c) Failure by Borrower to keep and perform any of the terms,
covenants or provisions of this Security Agreement, the Note, the
Security Instruments, or the other Loan Documents.
11. Right of Enforcement. Lender shall have and may
exercise any and all rights of enforcement and remedies, before or
after an Event of Default, afforded to Lender under the Uniform
Commercial Code either as of the date of this Security Agreement or as
of any Event of Default, together with all of Lender's rights and
remedies pursuant to this Security Agreement, the Note, the Security
Instruments and the other Loan Documents, and together with any and
all other rights and remedies otherwise provided and available to
Lender by law; and in conjunction with, in addition to, or
substitution for those rights, Lender may, in its sole but reasonable
discretion, but only after five (5) days written notice to Borrower
and using legal means:
(a) enter upon the Property to take possession of, assemble
and collect and carry away the Collateral; and/or
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(b) require Borrower at Borrower's sole cost to assemble the
Collateral and make it available at a place Lender designates which is
convenient to allow Lender to take possession or dispose of the
Collateral; and/or
(c) waive any Event of Default, or remedy any Event of
Default in any reasonable manner, without waiving its rights and
remedies upon such Event of Default and without waiving any other
prior or subsequent Event of Default.
Lender shall not be liable for failure to assemble and collect the
Collateral or any part thereof or to enforce any rights hereunder or
under any agreement relating to the Collateral, or for any act or
omission on the part of Lender, its officers, agents or employees,
except willful misconduct or gross negligence.
12. Rights of Sale. Borrower agrees that if an Event of
Default occurs under this Security Agreement, Lender may, at its
option, sell and dispose of the Collateral at one or more public or
private sales upon giving Borrower not less than twenty (20) days'
written notice of the time and place of each such public sale or the
time, place, terms and conditions of each such private sale, which
notice or notices Borrower hereby agrees are commercially reasonable
within the meaning of the Uniform Commercial Code. Lender, or any
other party which is the highest bidder, shall have the right to
purchase the Collateral being offered at any public sale free from any
right of redemption, if any, in Borrower, which right of redemption is
hereby expressly waived. Lender as highest bidder at any public sale
may apply any unpaid portion of the Debt on account of or in full
satisfaction of the purchase price. Lender, if it is not the
purchaser, shall have the right to apply the net proceeds of any such
public or private sale (after paying all of its reasonable costs and
expenses of every kind and nature incidental thereto including,
without limitation, attorney's fees and legal expenses and expenses
incidental to preparing for sale, selling and the like), to payment of
the Debt. Only after so applying such net proceeds and after the
payment by Lender of any other sums required to be paid pursuant to
any existing or future provision of law including, without limitation,
the Uniform Commercial Code, shall Lender be obligated to account to
Borrower for the surplus, if any, resulting from any public or private
sale.
13. Right to Assign. Lender may assign all or any part
of its interest under this Security Agreement in accordance with the
provisions of the Security Instruments, and if Lender does assign any
interest in this Security Agreement, the assignee shall be entitled to
the performance of all of Borrower's obligations and agreements under
this Security Agreement, and the assignee shall be entitled to all the
rights and remedies of Lender under this Security Agreement.
14. Miscellaneous Rights of Lender. Borrower hereby
waives any and all legal requirements that Lender institute any action
or proceeding at law or in equity against Borrower or exhaust its
remedies in respect of the Security Instruments or any other security
held by Lender as a condition precedent to exercising its rights and
remedies as to the Collateral pursuant to the provisions of this
Security Agreement. Borrower waives any defenses caused by reason of
any disability or other defense of any person, or by reason of the
cessation from any cause whatsoever of the liability of any other
person.
15. Termination. This Security Agreement shall
terminate upon the satisfaction of the Security Instruments and the
payment in full of the Debt.
16. Authority. Borrower represents and warrants that it
has full power and authority to execute and deliver this Agreement,
and the execution and delivery of this Agreement has been duly
authorized and does not conflict with or constitute a default under
any law, judicial order or other agreement affecting Borrower or the
Property.
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16. Exculpation. THE PROVISIONS OF ARTICLE 11 OF THE
NOTE ARE HEREBY INCORPORATED BY REFERENCE TO THE FULLEST EXTENT AS IF
THE TEXT OF SUCH ARTICLE WERE SET FORTH IN ITS ENTIRETY HEREIN.
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IN WITNESS WHEREOF THIS AGREEMENT has been executed by
Borrower as of the day and year first above written.
BORROWER:
SLAM PROPERTIES I, L.L.C.,
a Georgia limited liability company
By: SLAM PROPERTIES MANAGEMENT I, L.L.C.,
a Georgia limited liability company,
Its Manager
By: SUBURBAN MANAGEMENT, INC.
a Georgia corporation,
Its Manager
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:_______________________
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
SCHEDULED PERSONAL PROPERTY
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