Exhibit 10.2.5
AMENDED AND RESTATED PROMISSORY NOTE A
$218,127,000 MARCH 31, 2003
RECITALS:
WHEREAS the Borrowers (hereinafter defined) are indebted to Lender
(hereinafter defined) with respect to a loan (the "ORIGINAL LOAN") in the
original principal amount of $224,036,325 which is secured by the lien and
security interest created, among other things, by those certain Mortgages/Deeds
of Trust/Deeds to Secure Debt, Assignments of Leases and Rents and Security
Agreements dated as of November 25, 2002 (as same may hereafter be amended,
modified or supplemented, the "SECURITY INSTRUMENT") executed by the Borrower
named therein, as grantor, in favor and for the benefit of Lender, as
beneficiary, as security for the Original Loan;
WHEREAS the Original Loan is evidenced by that certain promissory note
in the original principal sum of $224,036,325 from the Borrowers to Lender
dated as of November 25, 2002 (the "ORIGINAL NOTE");
WHEREAS The current outstanding principal balance due under the
Original Loan is $223,666,275;
WHEREAS the Borrowers and Lender have severed the Original Note
pursuant to the terms of that certain note severance agreement between the
Borrowers and Lender dated as of the date hereof (the "SEVERANCE AGREEMENT")
into two (2) separate and distinct obligations in substitution for the Original
Note, represented by this Amended and Restated Promissory Note A in the amount
of $218,127,000 and that certain Promissory Note B in the amount of $5,539,275;
and
WHEREAS the Borrowers and Lender intend these Recitals to be a
material part of this Amended and Restated Note.
NOW THEREFORE, 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 EIGHTEEN
MILLION ONE HUNDRED TWENTY-SEVEN THOUSAND AND NO/100 DOLLARS ($218,127,000.00),
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 Amended
and Restated Promissory Note A may be referred to herein as the "RESTATED
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 Restated
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 Restated 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 Restated 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 Restated Note, including the terms and
conditions under which this Restated Note may be prepaid or its maturity
accelerated. This Restated 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 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 Restated 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 Restated 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
2
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 Restated
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 Restated 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 Restated 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 Restated 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 Restated 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 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 Restated 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 Restated 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.
3
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 Restated 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
Restated 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 Restated 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
Restated 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 Restated 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
Restated 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
RESTATED 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 RESTATED 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 Restated
Note, the Loan Agreement, the Instrument and any or all of the other Loan
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
4
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 Restated
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 Restated 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 Restated 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.
REPLACEMENT NOTE. This Restated Note is "Amended and Restated
Promissory Note A" executed and delivered pursuant to the Severance Agreement.
The principal indebtedness evidenced hereby is a portion of the principal
indebtedness evidenced by the Original Note in the original principal sum of
$224,036,325 made by the Borrowers to Lender.
[NO ADDITIONAL TEXT ON THIS PAGE]
5
IN WITNESS WHEREOF, the undersigned Borrowers have executed this
Restated 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,
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