EXHIBIT 10.2.2
PROMISSORY NOTE
$224,036,325.00 NOVEMBER 25, 2002
FOR VALUE RECEIVED, the undersigned, each having an address c/o
Lodgian, Inc., 3445 Peachtree Road, NE, Suite 700, Atlanta, Georgia 30326 (each,
a "BORROWER", and collectively, "BORROWERS"), jointly and severally, promise to
pay to the order of MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation
(together with its successors and assigns, "LENDER"), at 4 World Financial
Center, New York, New York 10080, or such other place as Lender may designate in
writing, the principal sum of TWO HUNDRED TWENTY FOUR MILLION THIRTY SIX
THOUSAND THREE HUNDRED TWENTY FIVE AND NO/100 DOLLARS ($224,036,325.00), with
interest on the unpaid principal balance from the date of this Note, until paid,
at the Interest Rate in effect from time to time hereunder. This Promissory Note
may be referred to herein as the "NOTE," and the loan evidenced hereby may be
referred to herein as the "LOAN." Capitalized terms used but not otherwise
defined herein shall have the respective meanings given thereto in the Loan
Agreement (hereinafter defined).
PAYMENTS OF PRINCIPAL AND INTEREST. Borrowers shall make payments of
principal and interest on the outstanding principal balance of this Note in
accordance with the terms and provisions of Section 2.4 of the Loan Agreement.
The entire outstanding principal balance of the Loan, all accrued and
unpaid interest thereon (including interest through the end of the Interest
Accrual Period then in effect) and all other amounts due hereunder and under the
other Loan Documents (collectively, the "DEBT") if not sooner paid (and unless
Borrowers shall extend the term of the Loan for the First Extension Term, the
Second Extension Term, or all Extension Terms) shall be due and payable on
November 30, 2004 (the "SCHEDULED MATURITY DATE"). Subject to the terms and
conditions of Section 2.5(B) of the Loan Agreement, Borrowers may extend the
term of the Loan for the Extension Terms. The Scheduled Maturity Date, as the
same may be extended for the First Extension Term, the Second Extension Term, or
the Third Extension Term (subject to the terms and conditions of Section 2.5(B)
of the Loan Agreement), or such other date on which the final payment of the
Debt becomes due hereunder or under the Loan Agreement or the other Loan
Documents, whether at such stated maturity date, by acceleration, or otherwise,
shall be referred to herein as the "MATURITY DATE".
Interest on the principal sum of this Note shall be calculated on the
basis of a 360 day year, and shall be charged for the actual number of days
elapsed during any month or other accrual period.
SECURITY; LOAN DOCUMENTS. This Note is being executed and delivered
pursuant to that certain Loan and Security Agreement, dated as of the date
hereof (as amended, modified or restated from time to time, the "LOAN
AGREEMENT"), among Borrowers and Lender, to which reference is hereby made for
the terms and conditions governing this Note, including the terms and conditions
under which this Note may be prepaid or its maturity accelerated. This Note is
secured by, among other things, those certain Mortgages/Deeds of Trust/Deeds to
Secure Debt, Assignments of Leases and Rents and Security Agreements, dated as
of the date hereof (as
Promissory Note
amended, modified or restated from time to time, collectively, the
"INSTRUMENT"), executed by the Borrower named therein, encumbering such
Borrower's fee simple or leasehold interest in and to certain real property as
more particularly described therein (collectively, the "PROPERTY"). This Note,
the Loan Agreement, the Instrument, and all other documents or instruments given
by Borrowers or any one of them or any guarantor and accepted by Lender for
purposes of evidencing, securing, perfecting, or guaranteeing the indebtedness
evidenced by this Note may be referred to as the "LOAN DOCUMENTS."
PREPAYMENT; PREPAYMENT CONSIDERATION. Borrowers shall have no right to
prepay the Loan in whole or in part except as expressly provided in Section 2.6
of the Loan Agreement.
EVENTS OF DEFAULT; ACCELERATION. Upon the occurrence and during the
continuance of any Event of Default, at the option of Lender and without notice,
the entire principal amount and all interest accrued and outstanding hereunder
and all other amounts outstanding under any of the Loan Documents shall at once
become due and payable, and Lender may exercise any and all of its rights and
remedies under any of the Loan Documents or pursuant to applicable law. Lender
may so accelerate such obligations and exercise such remedies at any time after
the occurrence of any Event of Default, regardless of any prior forbearance.
LATE CHARGES; DEFAULT INTEREST. If an Event of Default relating to
non-payment of any principal, interest or other sums due under this Note or
under any of the other Loan Documents shall occur, then Borrowers shall pay to
Lender, in addition to all sums otherwise due and payable, a late charge in an
amount equal to five percent (5.0%) of such principal, interest or other sums
due hereunder or under any other Loan Document (or, in the case of a partial
payment, the unpaid portion thereof), such late charge to be immediately due and
payable without demand by Lender.
Upon the occurrence and during the continuance of an Event of Default
and in any event from and after the Maturity Date of the Loan, the outstanding
principal balance of this Note and all other Obligations shall bear interest
until paid in full at a rate per annum (the "DEFAULT RATE") equal to the sum of
(i) five percent (5.0%) and (ii) the Interest Rate otherwise applicable under
this Note.
Borrowers agree that such late charge and Default Rate of interest are
reasonable and do not constitute a penalty.
INTEREST LAWS. Notwithstanding any provision to the contrary contained
in this Note, the Loan Agreement or the other Loan Documents, Borrowers shall
not be required to pay, and Lender shall not be permitted to collect, any amount
of interest in excess of the maximum amount of interest permitted by law
("EXCESS INTEREST"). If any Excess Interest is provided for or determined by a
court of competent jurisdiction to have been provided for in this Note, the Loan
Agreement or in any of the other Loan Documents, then in such event: (i) the
provisions of this subsection shall govern and control; (ii) Borrowers shall not
be obligated to pay any Excess Interest; (iii) any Excess Interest that Lender
may have received hereunder shall be, at Lender's option, (a) applied as a
credit against either or both of the outstanding principal balance of the Loan
or accrued and unpaid interest thereunder (not to exceed the maximum amount
permitted
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Promissory Note
by law), (b) refunded to the payor thereof, or (c) any combination of the
foregoing; (iv) the interest rate(s) provided for herein shall be automatically
reduced to the maximum lawful rate allowed from time to time under applicable
law (the "MAXIMUM RATE"), and this Note, the Loan Agreement and the other Loan
Documents shall be deemed to have been and shall be, reformed and modified to
reflect such reduction; and (v) Borrowers shall not have any action against
Lender for any damages arising out of the payment or collection of any Excess
Interest. Notwithstanding the foregoing, if for any period of time interest on
any Obligation is calculated at the Maximum Rate rather than the applicable rate
under this Note, and thereafter such applicable rate becomes less than the
Maximum Rate, the rate of interest payable on such Obligations shall, to the
extent permitted by law, remain at the Maximum Rate until Lender shall have
received or accrued the amount of interest which Lender would have received or
accrued during such period on Obligations had the rate of interest not been
limited to the Maximum Rate during such period. If the Default Rate shall be
finally determined to be unlawful, then the Interest Rate shall be applicable
during any time when the Default Rate would have been applicable hereunder,
provided however that if the Maximum Rate is greater or lesser than the Interest
Rate, then the foregoing provisions of this paragraph shall apply.
CERTAIN RIGHTS AND WAIVERS. From time to time, without affecting the
obligation of Borrowers or their successors or assigns to pay the outstanding
principal balance of this Note, interest thereon and other amounts due hereunder
and to observe the covenants contained herein, in the Loan Agreement, the
Instrument or in any other Loan Document, without affecting the guaranty of any
person or entity for payment of the outstanding principal balance of this Note,
without giving notice to or obtaining the consent of any Borrower or its
successors or assigns or any guarantors or indemnitor, and without liability on
the part of Lender, Lender may, at its option, extend the time for payment of
the outstanding principal balance of this Note or any part thereof, reduce the
payments thereon, release anyone liable for payment of all or a portion of said
indebtedness, accept a renewal of this Note, modify the terms and time of
payment of said outstanding principal balance, join in any extension or
subordination agreement, release any security given herefor, take or release
other or additional security, and agree in writing with the undersigned to
modify the rate of interest or period of amortization of this Note or change the
amount of the monthly installments payable hereunder.
Presentment, notice of dishonor, and protest are hereby waived by
Borrowers and all makers, sureties, guarantors and endorsers hereof. This Note
shall be binding upon Borrowers and their successors and assigns.
EACH BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS
NOTE, THE INSTRUMENT, ANY OTHER LOAN DOCUMENT, ANY OTHER AGREEMENT CONTEMPLATED
TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
ASSIGNMENT AND TRANSFER OF NOTE. Lender shall have the right to assign
or transfer, in whole or in part (including the right to grant participation
interests in) any or all of its obligations under this Note, the Loan Agreement,
the Instrument and any or all of the other Loan
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Promissory Note
Documents, subject to the terms of the Loan Agreement. Lender shall be released
of any obligations accruing after the date of such assignment or transfer to the
extent that the same are so assigned or transferred, and the rights and
obligations of "LENDER" hereunder shall become the rights and obligations of the
transferee holder. Lender agrees to provide Borrowers with notice of any such
assignment; provided, however, that no Borrower's consent shall be required in
connection with any such assignment and no failure or delay by Lender in
delivering such notice shall limit the effectiveness of such assignment.
LIMITATION ON RECOURSE. The obligations of Borrowers hereunder are
subject to limitations on recourse as provided in Article XII of the Loan
Agreement.
ATTORNEYS' FEES, COSTS OF COLLECTION. Borrowers shall pay to Lender on
demand all reasonable out-of-pocket costs and expenses, including reasonable
attorneys' fees and expenses, incurred by Lender in collecting the indebtedness
arising hereunder or under any other Loan Documents or secured thereby or
otherwise exercising any rights or remedies of Lender hereunder or thereunder or
at law or in equity or enforcing the obligations of any parties hereto or
thereto, or as a consequence of any breach or default by any Borrower or any
guarantor hereunder or thereunder, or otherwise as a consequence of any right
evidenced or secured by this Note or the Loan Documents. Without limitation,
such costs and expenses to be reimbursed by Borrowers shall include reasonable
attorneys' fees and expenses incurred in any bankruptcy case or proceeding and
in any appeal.
APPLICABLE LAW. This Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and performed in the State of New York and any applicable laws of the United
States of America.
TIME OF ESSENCE. Subject to the terms of the Loan Agreement, time shall
be of the essence as to all of the terms, covenants and conditions of this Note.
If the due date of any payment due hereunder or under any of the other Loan
Documents shall fall on a day other than a Business Day, Borrowers shall be
required to make such payment on the next succeeding Business Day.
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Promissory Note
IN WITNESS WHEREOF, the undersigned Borrowers have executed this
Promissory Note as of the date first written above.
ALBANY HOTEL, INC., a Florida corporation,
APICO HILLS, INC., a Pennsylvania corporation,
APICO INNS OF GREEN TREE, INC., a
Pennsylvania corporation,
BRUNSWICK MOTEL ENTERPRISES, INC., a
Georgia corporation,
DOTHAN HOSPITALITY 3053, INC., an Alabama
corporation,
DOTHAN HOSPITALITY 3071, INC., an Alabama
corporation,
GADSDEN HOSPITALITY, INC., an Alabama
corporation,
LODGIAN AMI, INC., a Maryland corporation,
MINNEAPOLIS MOTEL ENTERPRISES, INC., a
Minnesota corporation,
NH MOTEL ENTERPRISES, INC., a Michigan
corporation,
SERVICO AUSTIN, INC., a Texas corporation,
SERVICO CEDAR RAPIDS, INC., an Iowa
corporation,
SERVICO COLUMBIA, INC., a Maryland
corporation,
SERVICO GRAND ISLAND, INC., a New York
corporation,
SERVICO HOUSTON, INC., a Texas corporation,
SERVICO JAMESTOWN, INC., a New York
corporation,
SERVICO LANSING, INC., a Michigan
corporation,
Promissory Note
SERVICO MARKET CENTER, INC., a Texas
corporation,
SERVICO MARYLAND, INC., a Maryland
corporation,
SERVICO METAIRIE, INC., a Louisiana
corporation,
SERVICO NEW YORK, INC., a New York
corporation,
SERVICO NIAGARA FALLS, INC., a New York
corporation,
SERVICO NORTHWOODS, INC., a Florida
corporation,
SERVICO PENSACOLA 7200, INC., a Delaware
corporation,
SERVICO PENSACOLA 7330, INC., a Delaware
corporation,
SERVICO PENSACOLA, INC., a Delaware
corporation,
SERVICO ROLLING MEADOWS, INC., an
Illinois corporation,
SERVICO WINTER HAVEN, INC., a Florida
corporation,
SHEFFIELD MOTEL ENTERPRISES, INC., an
Alabama corporation,
IMPAC HOTELS I, L.L.C., a Georgia limited
liability company, and
LODGIAN MEMPHIS PROPERTY OWNER,
LLC, a Delaware limited liability company
By: /s/ Daniel E. Ellis
---------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary or
authorized signatory of the above
entities
Promissory Note
LIMITED PARTNERSHIPS:
AMI OPERATING PARTNERS, L.P., a Delaware
limited partnership
By: AMIOP ACQUISITION GENERAL
PARTNER SPE CORP., a Delaware
corporation, its General Partner
By: /s/ Daniel E. Ellis
---------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
DEDHAM LODGING ASSOCIATES I, LIMITED
PARTNERSHIP, a Georgia limited partnership
By: DEDHAM LODGING SPE, INC., a Delaware
corporation, its General Partner
By: /s/ Daniel E. Ellis
---------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
LITTLE ROCK LODGING ASSOCIATES I,
LIMITED PARTNERSHIP, a Georgia limited
partnership
By: LODGIAN LITTLE ROCK SPE, INC., a
Delaware corporation, its General Partner
By: /s/ Daniel E. Ellis
---------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
SERVICO CENTRE ASSOCIATES, LTD., a
Florida limited partnership
By: SERVICO PALM BEACH GENERAL
PARTNER SPE, INC., a Delaware
corporation, its General Partner
By: /s/ Daniel E. Ellis
---------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
Promissory Note