EXHIBIT 10.2.3
MODIFICATION OF LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
by and between
THE BORROWER OR BORROWERS
LISTED ON SCHEDULE 1 HERETO
and
MERRILL LYNCH MORTGAGE LENDING, INC.
as Lender
Dated as of March 31, 2003
Modification Agreement (Mortgage)
THIS MODIFICATION OF LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this
"AGREEMENT"), is made as of March 31, 2003, by 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"), in favor of MERRILL
LYNCH MORTGAGE LENDING, INC., a Delaware corporation (together with its
successors and assigns, "LENDER"), having an address at 4 World Financial
Center, New York, New York 10080.
RECITALS:
WHEREAS, Lender previously made a loan in the principal sum of
$224,036,325 (the "ORIGINAL LOAN") to the Borrowers, which Original Loan (i) is
evidenced by and advanced pursuant to the terms and provisions of that certain
Note dated as of November 25, 2002, made by the Borrowers to Lender (the
"ORIGINAL NOTE") and the Loan and Security Agreement dated as of November 25,
2002, among the Borrowers and Lender (the "LOAN AGREEMENT") and (ii) is secured
by, among other things, the Loan Documents (hereinafter defined);
WHEREAS, Lender previously made a loan in the principal sum of
$78,671,201 (the "ORIGINAL MEZZANINE LOAN") to the Mezzanine Borrowers (as
defined in the Loan Agreement), which Original Mezzanine Loan is evidenced by
and advanced pursuant to the terms and provisions of that certain Mezzanine Note
dated as of November 25, 2002, made by the Mezzanine Borrowers to Mezzanine
Lender (as defined in the Loan Agreement) (the "ORIGINAL MEZZANINE NOTE") and
the Loan and Security Agreement dated as of November 25, 2002, among the
Mezzanine Borrowers and Mezzanine Lender;
WHEREAS, in connection with the Original Loan, Guarantor (as defined in
the Loan Agreement) guaranteed to Lender repayment of the Original Loan and
certain recourse obligations pursuant to and to the extent as described in the
terms and provisions of the Guaranty (as defined in the Loan Agreement);
WHEREAS, in connection with the Original Loan, Guarantor agreed to
indemnify and hold Lender harmless from and against certain claims and
obligations pursuant to and as described in the provisions the Environmental
Indemnity (as defined in the Loan Agreement);
WHEREAS, at the time of origination of the Original Mezzanine Loan and
the Original Loan, each of the Mezzanine Borrowers and the Borrowers agreed, in
consideration of making the Mezzanine Loan and the Original Loan prior to the
final determination of sizing of the Original Mezzanine Loan and the Original
Loan, that prior to a Securitization the principal balance of the Original Loan
and the Original Mezzanine Loan may be adjusted in the sole discretion of Lender
and Mezzanine Lender (the "RESIZING"), subject to certain limitations with
respect to, among other things, (i) changes in the weighted average interest
rate and aggregate debt service payable on the Original Mezzanine Loan and the
Original Loan, and (ii) material changes to the rights or obligations of the
Mezzanine Borrowers and the Borrowers under the Mezzanine Loan Documents and the
Loan Documents;
WHEREAS, Lender and Mezzanine Lender have elected to cause the Resizing
to be effectuated pursuant to the terms hereof, and pursuant to certain
additional documents executed
Modification Agreement (Mortgage)
and delivered by the Mezzanine Borrowers, the Borrowers, Mezzanine Lender and
Lender, as applicable;
WHEREAS, in connection with the Resizing, pursuant to the terms of that
certain Note Severance Agreement dated as of the date hereof among the Borrowers
and Lender, the Original Note has been severed into two notes in the respective
amounts of $218,127,000 (the "RESTATED NOTE"), and $5,539,275 (the "ASSUMED
NOTE");
WHEREAS, in connection with the Resizing, the Mezzanine Borrowers have
assumed the repayment obligations under and pursuant to the terms of the Assumed
Note;
WHEREAS, in connection with the Resizing, Lender has assigned all of
its right, title and interest in and to the Assumed Note, but not the Amended
and Restated Promissory Note A, to Mezzanine Lender and Mezzanine Lender has
succeeded to all right, title and interest in and to the Assumed Note;
WHEREAS, Lender is now the owner and holder of (i) those certain
Mortgages/Deeds of Trust/Deeds to Secure Debt, Assignments of Leases and Rents,
and Security Agreement, dated as of November 25, 2002 (as amended, modified or
restated from time to time, (collectively, the "SECURITY INSTRUMENTS") 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, and (ii) the Restated Note; and
WHEREAS, the Borrowers and Lender have agreed in the manner hereinafter
set forth to modify the terms and provisions of the Loan Agreement, the Security
Instruments, that certain Cash Management Agreement (the "CASH MANAGEMENT
AGREEMENT") dated as of November 25, 2002, among the Borrowers, Lender and
Wachovia Bank, National Association, and such other documents as are set forth
on SCHEDULE 1 (such other documents, together with the Cash Management
Agreement, collectively, the "OTHER LOAN DOCUMENTS", and together with the Loan
Agreement, the Restated Note, and the Security Instrument, collectively, the
"LOAN DOCUMENTS") in the manner hereinafter set forth.
NOW THEREFORE, in pursuance of said agreement and in consideration of
ten dollars and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the
Borrowers and Lender hereby agree as follows:
A. The Recitals are hereby incorporated herein by this reference.
B. The Loan Agreement shall be deemed modified and amended in the
following respects:
(i) The term "NOTE" as used in the Loan Agreement shall
refer to the Restated Note.
(ii) The term "LOAN" as used in the Loan Agreement shall
refer to a loan in the original principal amount of
$218,127,000 as the same may be decreased from time
to time.
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(iii) The definition of "APPLICABLE SPREAD" set forth in
Section 1.1 of the Loan Agreement shall be deemed
deleted in its entirety and replaced with the
following:
"APPLICABLE SPREAD" means 2.3600%.
(iv) The definition of "MEZZANINE LENDER'S PERCENTAGE" set
forth in Section 1.1 of the Loan Agreement shall be
deemed deleted in its entirety and replaced with the
following:
"MEZZANINE LENDER'S PERCENTAGE" shall mean, at the
time of determination, the ratio, expressed as a
percentage, that the then outstanding principal
balance of the Mezzanine Loan bears to the Aggregate
Outstanding Principal Balance. As of the date hereof
Mezzanine Lender's Percentage is 27.82%.
(v) The definition of "MEZZANINE LOAN" set forth in
Section 1.1 of the Loan Agreement shall be deemed
deleted in its entirety and replaced with the
following:
"MEZZANINE LOAN" means that certain loan in the
amount of $84,080,526 from Mezzanine Lender to the
Mezzanine Borrowers.
(vi) The definition of "MORTGAGE LENDER'S PERCENTAGE" set
forth in Section 1.1 of the Loan Agreement shall be
deemed deleted in its entirety and replaced with the
following:
"MORTGAGE LENDER'S PERCENTAGE" shall mean, at the
time of determination, the ratio, expressed as a
percentage, that the outstanding principal balance of
the Loan bears to the Aggregate Outstanding Principal
Balance. As of the date hereof, Mortgage Lender's
Percentage is 72.18%.
(vii) The definition of "SCHEDULED MEZZANINE PRINCIPAL
PAYMENTS" set forth in Section 1.1 of the Loan
Agreement shall be deemed deleted in its entirety and
replaced with the following:
"SCHEDULED MEZZANINE PRINCIPAL PAYMENTS" shall mean
(x) $69,550 through and including the Payment Date in
November 2003, (y) $104,325 following the Payment
Date in November 2003, through and including the
Payment Date in November 2004, and (z) $139,100
thereafter through the Maturity Date.
(viii) The definition of "SCHEDULED MORTGAGE PRINCIPAL
PAYMENTS" set forth in Section 1.1 of the Loan
Agreement shall be deemed deleted in its entirety and
replaced with the following:
"SCHEDULED MORTGAGE PRINCIPAL PAYMENTS" shall mean
(x) $180,450 through and including the Payment Date
in November 2003, (y) $ 270,675
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following the Payment Date in November 2003, through
and including the Payment Date in November 2004, and
(z) $360,900 thereafter through the Maturity Date.
(ix) Section 2.1(A) and (B) of the Loan Agreement shall be
deemed modified and amended by replacing all
references therein to the figure "$224,036,325" with
the figure "$218,127,000."
(x) Section 2.6(B) of the Loan Agreement shall be deemed
modified and amended by deleting the final sentence
thereof and inserting the following:
"PREPAYMENT CONSIDERATION" shall mean an amount equal
to (i) prior to the Payment Date in December 2003,
three percent (3%) of the amount prepaid, and (ii) on
and after the Payment Date in December 2003, but
prior to the Payment Date in May 2004, two percent
(2%) of the amount prepaid, and (iii) thereafter
through the Scheduled Maturity Date one percent (1%)
of the amount prepaid.
(xi) EXHIBIT A captioned "Allocated Loan Amount/Aggregate
Allocated Loan Amount" of the Loan Agreement shall be
deemed deleted in its entirety and replaced with
EXHIBIT A annexed hereto and made a part hereof.
C. The Other Loan Documents shall each be deemed modified and
amended in the following respects:
(i) The terms "NOTE" and "MORTGAGE NOTE" as used in the
Other Loan Documents shall be deemed to refer to the
Restated Note.
(ii) The terms "LOAN" and "MORTGAGE LOAN" as used in the
Other Loan Documents shall be deemed to refer to a
loan in the original principal amount of $218,127,000
as the same may be decreased from time to time.
(iii) All references in the Other Loan Documents to the
figure "$78,671,526" shall be deemed to refer to the
figure "$84,080,526".
(iv) All references in the Other Loan Documents to the
figure "$224,036,325" shall be deemed to refer to the
figure "$218,127,000".
D. The Cash Management Agreement shall be deemed further modified
and amended in the following respects:
(i) The definition of "MONTHLY FF&E PAYMENT" set forth in
Article I of the Cash Management Agreement shall be
deemed deleted in its entirety and replaced with the
following:
"MONTHLY FF&E PAYMENT" shall mean the monthly deposit
required to be made to the FF&E Reserve pursuant to
Section 6.4 of the Loan Agreement; provided that if
at the time of determination thereof the actual
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Operating Revenues utilized in calculating the
Monthly FF&E Payment have not been determined for the
applicable month, such calculation shall be based
upon the Operating Revenues set forth for such month
in the applicable Operating Budget, and, upon
determination of the actual Operating Revenues for
such month, any deficit or excess deposits with
respect to the FF&E Reserve shall be adjusted within
five (5) Business Days of such determination, with
any deficit being satisfied, and any excess being
allocated and deposited, in accordance with Section
3.3(a) hereof.
(ii) The definition of "MONTHLY OPERATING EXPENSE BUDGET
AMOUNT" set forth in Article I of the Cash Management
Agreement shall be deemed deleted in its entirety and
replaced with the following:
"MONTHLY OPERATING EXPENSE BUDGET AMOUNT" shall mean,
with respect to each month, an amount equal to the
Operating Expenses plus estimated sales and similar
taxes relating to the Properties (excluding therefrom
Impositions, Insurance Premiums, FF&E expenditures,
and management fees payable to any Manager that is an
Affiliate of the Borrowers) set forth in the Approved
Operating Budget for the applicable month of
determination.
(iii) Section 2.1(f) of the Cash Management Agreement shall
be deemed modified and amended by replacing all
references therein to "Section 3.3(a)(vii)" with the
reference to "Section 3.3(a)(vi)".
(iv) Section 3.3(a) of the Cash Management Agreement shall
be deemed deleted in its entirety and replaced with
the following:
(a) At any time other than after the occurrence
and during the continuance of an Event of Default,
Agent shall allocate and distribute, as applicable,
all available funds on deposit in the Lock Box
Account on each Business Day of each calendar month
(or such other period of time as set forth below) in
the following amounts and order of priority:
(i) First, to the Impositions and
Insurance Reserve Sub-Account, the
Monthly Impositions and Insurance
Amount for the next Monthly Payment
Date;
(ii) Second, to the Debt Service
Sub-Account, that portion of the
Monthly Debt Service Payment Amount
constituting interest only due
under the Note and the Loan
Agreement for the next Monthly
Payment Date;
(iii) Third, for so long as the Mezzanine
Loan is outstanding, to the
Mezzanine Loan Debt Service
Sub-Account, an amount equal to
that portion of the Monthly
Mezzanine Debt
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Service Payment Amount constituting
interest only due under the
Mezzanine Loan Agreement for the
next Monthly Payment Date;
(iv) Fourth, on the Monthly Payment Date
in November 2003 and on each
Monthly Payment Date thereafter, to
the Debt Service Sub-Account, that
portion of the Monthly Debt Service
Payment Amount constituting
principal only due under the Note
and the Loan Agreement for the next
Monthly Payment Date;
(v) Fifth, on the Monthly Payment Date
in November 2003 and on each
Monthly Payment Date thereafter,
for so long as the Mezzanine Loan
is outstanding, to the Mezzanine
Loan Debt Service Sub-Account, an
amount equal to that portion of the
Monthly Mezzanine Debt Service
Payment Amount constituting
principal only due under the
Mezzanine Loan Agreement;
(vi) Sixth, to the FF&E Reserve Account,
the Monthly FF&E Payment for the
next Monthly Payment Date;
(vii) Seventh, to the Operating Expense
Sub-Account, funds sufficient to
pay the Monthly Operating Expense
Budget Amount for the next calendar
Month;
(viii) Eighth, to the Operating Expense
Sub-Account, funds in an amount
necessary to pay Extraordinary
Expenses approved by Lender and
Mezzanine Lender, if any;
(ix) Ninth, to the Operating Expense
Sub-Account, subject to the terms
and conditions of the Assignment of
Management Agreement, any
management fees due and owing to
Manager which have not previously
been paid to Manager, together with
any fees payable to Manager for the
next calendar month pursuant to the
Management Agreement not otherwise
paid pursuant to (vii) above;
(x) Tenth, to the Debt Service
Sub-Account, Mortgage Lender's
Percentage of each of (a) the
Excess Cash Flow Amortization
Payment and (b) the Excess Cash
Flow Supplemental Payment, together
with that portion of the Monthly
Debt Service Payment Amount
constituting late payment charges,
default interest, and any other
amounts (other than interest and
principal paid pursuant to (ii) and
(iv) above) then due and owing
under the Loan Agreement
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due for the next Monthly Payment
Date under the Loan Agreement;
(xi) Eleventh, for so long as the
Mezzanine Loan is outstanding, to
the Mezzanine Loan Debt Service
Sub-Account, Mezzanine Lender's
Percentage of each of (a) the
Excess Cash Flow Amortization
Payment and (b) the Excess Cash
Flow Supplemental Payment, together
with that portion of the Monthly
Mezzanine Debt Service Payment
Amount constituting late payment
charges, default interest, and any
other amounts (other than interest
and principal paid pursuant to
(iii) and (v) above) due for the
next Monthly Payment Date under the
Mezzanine Loan Agreement;
(xii) Twelfth, if a Cash Trap Event shall
have occurred and is continuing,
any amounts remaining in the Lock
Box Account after deposits for
items (i) through (xi) above shall
be deposited into the Cash Trap
Reserve Sub-Account; and
(xiii) Thirteenth, if no Cash Trap Event
shall have occurred and is
continuing, any amounts remaining
in the Lock Box Account after
deposits for items (i) through (xi)
above shall be paid to, or as
directed by, the Borrowers.
(v) Sections 3.3(c) and 3.3(d) of the Cash Management
Agreement shall be deemed deleted in their entirety
and replaced with the following:
(c) The Borrowers shall use, or caused to be
used, all disbursements made to it under Sections
3.3(a)(vii) and (viii) solely to pay Operating
Expenses in accordance with the Approved Operating
Budget and to pay Extraordinary Expenses for which
Lender has approved disbursements under Section
3.3(a)(viii) above.
(d) Notwithstanding anything to the contrary
contained herein, Lender shall not be obligated to
make any disbursement from the Lock Box Account
(under Sections 3.3(a)(vii) and (viii) or otherwise)
to pay for any costs or expenses (including legal
fees) in connection with any dispute or defense of
the Borrowers under any of the Loan Documents.
(vi) Section 3.4 of the Cash Management Agreement shall be
deemed deleted in its entirety and replaced with the
following:
SECTION 3.4 DISBURSEMENTS FOR OPERATING EXPENSE
AMOUNTS. The Borrowers shall provide on a monthly
basis (a) a reasonably detailed explanation of any
variances of ten percent (10%) or more between
budgeted (as set forth in the Approved Operating
Budget) and actual Operating Expense amounts for any
month in the aggregate, and (b) with
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respect to any individual item with a cost of $10,000
or more and not otherwise covered by the Approved
Operating Budget, all invoices or other backup
requested by Lender to substantiate the amount
disbursed to the Borrowers pursuant to Section
3.3(a)(vii) and (viii).
(vii) Section 4.1(c) of the Cash Management Agreement shall
be deemed deleted in its entirety and replaced with
the following:
(c) Operating Expense Sub-Account. Funds
deposited into the Operating Expense Sub-Account
pursuant to Sections 3.3(a)(vii) through (ix) shall
be distributed to the Borrowers on each Business Day.
(viii) Section 8.4 of the Cash Management Agreement shall be
deemed modified and amended by inserting as the first
sentence thereof the following:
Agent shall deduct from the Lock Box Account for its
own account the monthly Servicing Fee for which the
Borrowers are responsible pursuant to Section 2.11 of
the Loan Agreement prior to making any disbursements
pursuant to Section 3.3(a)(ii) hereof, and, for so
long as the Mezzanine Loan is outstanding, Agent
shall deduct from the Lock Box Account the monthly
Servicing Fee (as such term is defined in the
Mezzanine Loan Agreement) for which the Mezzanine
Borrowers are responsible pursuant to Section 2.11 of
the Mezzanine Loan Agreement to be remitted to the
Servicer (as such term is defined in the Mezzanine
Loan Agreement) prior to making any disbursements
pursuant to Section 3.3(a)(iii) hereof.
E. The Borrowers and Lender acknowledge and agree that Lender has
waived any amortization payment required pursuant to Section 2.4(A) of the Loan
Agreement for the Payment Date in March 2003 only. Notwithstanding the foregoing
to the contrary, the Borrowers acknowledge and agree that the aggregate amount
of the Scheduled Principal Payments (with the Scheduled Principal Payment for
the Payment Date in March 2003 being deemed to be $185,025) through the Payment
Date in March 2003 is $740,100, and further acknowledge and agree that the
aggregate of all principal payments made by the Borrowers through the Payment
Date in March 2003 is $370,050, and therefore the aggregate Amortization
Deficiency through the Payment Date in March 2003 shall be deemed to be
$370,050. Further, the Borrowers shall retain any Excess Cash Flow accruing
during the month of March 2003, which amounts shall be (i) included in
calculating Excess Cash Flow for the month of April 2003 for all intents and
purposes under the Loan Documents, and (ii) applied (together with any Excess
Cash Flow accruing during the month of April 2003) in accordance with Section
2.4(A) of the Loan Agreement.
F. The Borrowers acknowledge and agree that the Loan shall
continue to be evidenced by and payable in accordance with the provisions of the
Restated Note and the Loan Agreement, as hereby confirmed, modified and amended.
The Borrowers hereby agree to perform all of the terms, covenants and provisions
contained in the Restated Note and the Loan Agreement, as hereby confirmed,
modified and amended.
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G. The Borrowers represent and warrant that as of the date
hereof, to their Knowledge there are no Events of Default under any of the
terms, covenants or provisions of the Loan Documents and the Borrowers know of
no event which, but for the passage of time or the giving of notice or both,
would constitute an Event of Default under the Loan Documents.
H. The Borrowers represent, warrant and covenant that to their
Knowledge there are no offsets, counterclaims or defenses to the Obligations,
this Agreement, or the Loan Documents and that the Borrowers (and the
undersigned representatives of the Borrowers) have full power, authority and
legal right to execute this Agreement and keep and observe all of the terms of
this Agreement on the Borrowers' part to be observed or performed.
I. Except as expressly modified pursuant to this Agreement, all
of the terms, covenants and provisions of the Loan Documents shall continue in
full force and effect. In the event of any conflict between any of the terms,
covenants and provisions of this Agreement and those of the Loan Documents, the
terms, covenants and provisions of this Agreement shall control.
J. No amendment or waiver of any term, covenant or provision of
this Agreement nor consent to any departure by the Borrowers from the terms,
covenants or provisions of this Agreement shall be effective unless the same
shall be in writing and signed by Lender and, in the case of an amendment, the
Borrowers and any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
K. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
L. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
M. All capitalized terms not otherwise defined herein shall have
the meaning set forth in the Loan Agreement.
N. THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER 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.
[NO ADDITIONAL TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the undersigned Borrowers and Lender have executed
this Agreement as of the day and year 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,
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
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
LENDER:
MERRILL LYNCH MORTGAGE
LENDING, INC., a Delaware corporation
By: /s/ Steven Glassman
---------------------------
Name: Steven Glassman
Title: Authorized Signatory
CONSENT OF GUARANTOR
The undersigned has executed this Agreement in order to signify its consent to
the execution and delivery of this Agreement and the Restated Note by the
Borrowers and its agreement to be bound by the terms hereof to the extent
applicable. The undersigned hereby ratifies and confirms the Guaranty and the
Environmental Indemnity, as each have been amended and modified by this
Agreement, and acknowledges that to its Knowledge there are no offsets,
counterclaims or defenses of any nature whatsoever to its obligations and
liabilities under either of the Guaranty or the Environmental Indemnity, as each
have been amended and modified by this Agreement.
Dated: March 31, 2003
GUARANTOR:
LODGIAN, INC.
a Delaware corporation
By: /s/ Daniel E. Ellis
---------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
CONSENT OF AGENT
The undersigned has executed this Agreement in order to signify its agreement to
be bound by the terms hereof to the extent applicable with respect to the Cash
Management Agreement, and for no other purpose.
Dated: March 31, 2003
AGENT:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ David F. Sisom
--------------------------------------
Name: David F. Sisom
Title: Vice President
ACKNOWLEDGEMENT OF MANAGER
The undersigned has executed this Agreement in order to signify its agreement to
be bound by the terms hereof to the extent applicable with respect to the Cash
Management Agreement, the Assignments of Management Agreements, and any of the
other Loan Documents to which Manager is a party.
Dated: March 31, 2003
MANAGER:
LODGIAN MANAGEMENT CORP.
By: /s/ Daniel E. Ellis
---------------------------
Name: Daniel E. Ellis
Title: Vice President
SCHEDULE 1
BORROWERS
(LIST OF BORROWERS)
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,
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,
LODGIAN MEMPHIS PROPERTY OWNER, LLC, a Delaware limited liability
company,
AMI OPERATING PARTNERS, L.P., a Delaware limited partnership
DEDHAM LODGING ASSOCIATES I, LIMITED PARTNERSHIP, a Georgia
limited partnership
LITTLE ROCK LODGING ASSOCIATES I, LIMITED PARTNERSHIP, a
Georgia limited partnership
SERVICO CENTRE ASSOCIATES, LTD., a Florida limited partnership
SCHEDULE 2
OTHER LOAN DOCUMENTS
1. Assignments of Leases
2. Assignments of Management Agreements
3. Guaranty
4. Environmental Indemnity
5. Assignment of Rate Cap
6. Post-Closing Agreement given by the Borrowers
EXHIBIT A
ALLOCATED LOAN AMOUNT/AGGREGATE ALLOCATED LOAN AMOUNT