EXHIBIT 10.3.4
MODIFICATION OF LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
by and between
IMPAC HOTEL GROUP MEZZANINE, LLC, SERVICO
OPERATIONS MEZZANINE, LLC, LODGIAN FINANCING
MEZZANINE, LLC, ISLAND MOTEL ENTERPRISES, INC.,
and PENMOCO, INC.
as Mezzanine Borrowers
and
MERRILL LYNCH MORTGAGE LENDING, INC.
as Mezzanine Lender
Dated as of March 31, 2003
Modification Agreement(Mezzanine)
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 "MEZZANINE BORROWER" and collectively, "MEZZANINE BORROWERS"), in
favor of MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (together
with its successors and assigns, "MEZZANINE LENDER"), having an address at 4
World Financial Center, New York, New York 10080.
RECITALS:
WHEREAS, Mezzanine Lender previously made a loan in the principal sum
of $78,671,201 (the "ORIGINAL MEZZANINE LOAN") to the Mezzanine Borrowers, which
Original Mezzanine Loan (i) 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 (the "ORIGINAL MEZZANINE
NOTE") and the Mezzanine Loan Agreement dated as of November 25, 2002, among the
Mezzanine Borrowers and Mezzanine Lender (the "MEZZANINE LOAN AGREEMENT") and
(ii) is secured by, among other things, the Mezzanine Loan Documents
(hereinafter defined);
WHEREAS, Mortgage Lender (as defined in the Mezzanine Loan Agreement)
previously made a loan in the principal sum of $224,036,325 (the "ORIGINAL
MORTGAGE LOAN") to the Mortgage Borrowers (as defined in the Mezzanine Loan
Agreement), which Original Mortgage Loan (i) is evidenced by and advanced
pursuant to the terms and provisions of that certain Promissory Note dated as of
November 25, 2002, made by the Mortgage Borrowers to Mortgage Lender (the
"ORIGINAL MORTGAGE NOTE") and the Loan and Security Agreement dated as of
November 25, 2002, among the Mortgage Borrowers and Mortgage Lender;
WHEREAS, in connection with the Original Mezzanine Loan, Guarantor (as
defined in the Mezzanine Loan Agreement) guaranteed to Mezzanine Lender
repayment of the Original Mezzanine 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 Mezzanine Loan Agreement);
WHEREAS, in connection with the Original Mezzanine Loan, Guarantor
agreed to indemnify and hold Mezzanine Lender harmless from and against certain
claims and obligations pursuant to and as described in the provisions of the
Environmental Indemnity (as defined in the Mezzanine Loan Agreement);
WHEREAS, at the time of origination of the Original Mezzanine Loan and
the Original Mortgage Loan, each of the Mezzanine Borrowers and the Mortgage
Borrowers agreed, in consideration of making the Mezzanine Loan and the Mortgage
Loan prior to the final determination of sizing of the Original Mezzanine Loan
and the Original Mortgage Loan, that prior to a Securitization the principal
balance of the Original Mortgage Loan and the Original Mezzanine Loan may be
adjusted in the sole discretion of Mortgage 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 Mortgage Loan, and (ii)
material changes to the rights or
Modification Agreement(Mezzanine)
obligations of the Mezzanine Borrowers and the Mortgage Borrowers under the
Mezzanine Loan Documents and the Mortgage Loan Documents;
WHEREAS, Mezzanine Lender and Mortgage Lender have elected to cause the
Resizing to be effectuated pursuant to the terms hereof, and pursuant to certain
additional documents executed and delivered by the Mezzanine Borrowers, the
Mortgage Borrowers, Mezzanine Lender and Mortgage 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 Mortgage
Borrowers and Mortgage Lender, the Original Mortgage Note has been severed into
two notes in the respective amounts of $218,127,000 (the "AMENDED AND RESTATED
PROMISSORY NOTE A"), 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, Mortgage 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, pursuant to the terms of that certain Amended, Restated and
Consolidated Restated Mezzanine Note dated as of the date hereof, in the
original principal amount of $84,080,526 made by the Mezzanine Borrowers in
favor of Mezzanine Lender (the "RESTATED MEZZANINE NOTE"), the indebtedness
under the Original Mezzanine Note and the Assumed Note have been combined,
consolidated, coordinated, amended and restated in accordance with the terms of
the Restated Mezzanine Note;
WHEREAS, Mezzanine Lender is now the owner and holder of (i) that
certain Pledge and Security Agreement, dated as of November 25, 2002 (as
amended, modified or restated from time to time, the "PLEDGE AGREEMENT"),
executed by certain of the Mezzanine Borrowers named therein, pledging such of
the Mezzanine Borrowers' legal and beneficial interest in and to certain stock,
limited liability company membership interests and limited and general
partnership interests, as applicable, as more particularly described therein in
favor of Mezzanine Lender, (ii) that certain Leasehold Deed to Secure Debt,
Assignment of Leases and Rents and Security Agreement, dated as of November 25,
2002 (together with all extensions, renewals, modifications, substitutions and
amendments thereof, the "SECURITY INSTRUMENT"), made by Island Motel
Enterprises, Inc. and Penmoco, Inc. for the benefit of Lender and covering the
property as more particularly described therein, and (iii) the Restated
Mezzanine Note;
WHEREAS, the Mezzanine Borrowers and Mezzanine Lender have agreed in
the manner hereinafter set forth to modify the terms and provisions of the
Mezzanine Loan Agreement, the Pledge Agreement, that certain Mezzanine Cash
Management Agreement (the "CASH MANAGEMENT AGREEMENT") dated as of November 25,
2002, among the Mezzanine Borrowers, Mezzanine 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,
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collectively, the "OTHER LOAN DOCUMENTS", and together with the Mezzanine Loan
Agreement, the Restated Mezzanine Note, the Pledge Agreement, and the Security
Instrument, collectively, the "MEZZANINE 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
Mezzanine Borrowers and Mezzanine Lender hereby agree as follows:
A. The Recitals are hereby incorporated herein by this reference.
B. The Mezzanine Loan Agreement shall be deemed modified and
amended in the following respects:
(i) The term "NOTE" as used in the Mezzanine Loan
Agreement shall refer to the Restated Mezzanine Note.
(ii) The term "LOAN" as used in the Mezzanine Loan
Agreement shall refer to a loan in the original
principal amount of $84,080,526 as the same may be
decreased from time to time.
(iii) The definition of "APPLICABLE SPREAD" set forth in
Section 1.1 of the Mezzanine Loan Agreement shall be
deemed deleted in its entirety and replaced with the
following:
"APPLICABLE SPREAD" means 8.2546%; provided, however,
if the Borrowers have not made the Reserve Principal
Payment on or prior to the Payment Date in November
2003, the "APPLICABLE SPREAD" shall mean 8.7937%
throughout the remainder of the term of the Loan,
including any Extension Terms.
(iv) The definition of "MEZZANINE LENDER'S PERCENTAGE" set
forth in Section 1.1 of the Mezzanine Loan Agreement
shall be deemed deleted in its entirety and replaced
with the following:
"MEZZANINE LENDER'S PERCENTAGE" shall mean, if the
Mortgage Loan remains outstanding 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, and following satisfaction of the
Mortgage Loan, 100%. As of the date hereof Mezzanine
Lender's Percentage is 27.82%.
(v) The definition of "MORTGAGE LENDER'S PERCENTAGE" set
forth in Section 1.1 of the Mezzanine 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
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principal balance of the Mortgage Loan bears to the
Aggregate Outstanding Principal Balance. As of the
date hereof, Mortgage Lender's Percentage is 72.18%.
(vi) The definition of "MORTGAGE LOAN" set forth in
Section 1.1 of the Mezzanine Loan Agreement shall be
deemed deleted in its entirety and replaced with the
following:
"MORTGAGE LOAN" means that certain loan in the amount
of $218,127,000 from Mortgage Lender to the Mortgage
Borrowers.
(vii) The definition of "SCHEDULED MEZZANINE PRINCIPAL
PAYMENTS" set forth in Section 1.1 of the Mezzanine
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 Mezzanine
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 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 Mezzanine Loan
Agreement shall be deemed modified and amended by
replacing all references therein to the figure
"$78,671,201" with the figure "$84,080,526."
(x) Sections 2.4(A)(iv) and 2.6(C) of the Mezzanine Loan
Agreement shall be deemed modified and amended by
replacing all references therein to the word "prior"
with the words "on or prior".
(xi) Section 2.6(B) of the Mezzanine 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
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prepaid, and (iii) thereafter through the Scheduled
Maturity Date one percent (1%) of the amount prepaid.
(xii) EXHIBIT A captioned "Allocated Loan Amount/Aggregate
Allocated Loan Amount" of the Mezzanine 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 "MEZZANINE NOTE" as used in the
Other Loan Documents shall be deemed to refer to the
Restated Mezzanine Note.
(ii) The terms "LOAN" and "MEZZANINE LOAN" as used in the
Other Loan Documents shall be deemed to refer to a
loan in the original principal amount of $84,080,526
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 Mortgage Loan Agreement; provided
that if at the time of determination thereof the
actual 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:
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"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)(iv)" with the
reference to "Section 3.3(a)(iii)".
(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 Mezzanine 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, but only from and after the
Termination Date, to the
Impositions and Insurance Reserve
Sub-Account, the Monthly
Impositions and Insurance Amount
for the next Monthly Payment Date
(as if the Mortgage Loan Agreement
remained in full force and effect
with Lender as the lender
thereunder);
(ii) Second, but only to the extent not
deposited in the Mezzanine Loan
Debt Service Sub-Account
established under the Mortgage Loan
Cash Management Agreement, to the
Mezzanine Debt Service Sub-Account,
the Monthly Debt Service Payment
Amount, less Mezzanine Lender's
Percentage of the Excess Cash Flow
Amortization Payment and the Excess
Cash Flow Supplemental Payment for
the next Monthly Payment Date;
(iii) Third, but only from and after the
Termination Date, to the FF&E
Reserve Account, the Monthly FF&E
Payment for the next Monthly
Payment Date (as if the Mortgage
Loan Agreement remained in full
force and effect with Lender as the
lender thereunder);
(iv) Fourth, but only from and after the
Termination Date, to the Operating
Expense Sub-Account funds
sufficient to pay the
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Monthly Operating Expense Budget
Amount for the next calendar Month;
(v) Fifth, but only from and after the
Termination Date, to the Operating
Expense Sub-Account, funds in an
amount necessary to pay
Extraordinary Expenses approved by
Lender, if any;
(vi) Sixth, but only from and after the
Termination Date, to the Operating
Expense Sub-Account, subject to the
terms and conditions of the
Assignment of Management Agreement
(as defined in the Mortgage Loan
Agreement, and as if such agreement
continued in full force and effect
with the Lender as lender
thereunder), 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 (including
those with respect to the Jekyll
Island Property) not otherwise paid
pursuant to (iv) above;
(vii) Seventh, but only to the extent not
deposited in the Mezzanine Loan
Debt Service Sub-Account
established under the Mortgage Loan
Cash Management Agreement, to the
Mezzanine Debt Service Sub-Account,
Mezzanine Lender's Percentage of
the Excess Cash Flow Amortization
Payment and the Excess Cash Flow
Supplemental Payment for the next
Monthly Payment Date;
(viii) Eighth, but only from and after the
Termination Date, if a Cash Trap
Event shall have occurred and is
continuing, any amounts remaining
in the Mezzanine Lock Box Account
after deposits for items (i)
through (vii) above shall be
deposited into the Cash Trap
Reserve Sub-Account; and
(ix) Ninth, if no Cash Trap Event shall
have occurred and is continuing,
any amounts remaining in the
Mezzanine Lock Box Account after
deposits for items (i) through
(vii) above shall be (x) first
deposited into the Jekyll Island
Lock Box Account, if the Jekyll
Island Mortgage remains a lien on
the Jekyll Island Property, until
all deposits required to be made on
such Monthly Payment Date for items
(i) through (iv) of Section 3.3(a)
of the Jekyll Island Cash
Management Agreement have been
deposited in the Jekyll Island Lock
Box Account, and (y) thereafter,
paid within one (1) Business Day of
the date such funds become
available, to, or as directed by,
the Borrowers.
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(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)(iv) and (v) 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)(v) above.
(d) Notwithstanding anything to the contrary
contained herein, Lender shall not be obligated to
make any disbursement from the Mezzanine Lock Box
Account (under Sections 3.3(a)(iv) and (v) 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 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)(iv) and (v).
(vii) Section 4.1(c) 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)(iv) through (vi) 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 for its own account the monthly
Servicing Fee for which the Borrowers are responsible
pursuant to Section 2.11 of the Mezzanine Loan
Agreement from the Lock Box Account prior to making
any disbursements pursuant to Section 3.3(a)(ii)
hereof.
E. The Mezzanine Borrowers and Mezzanine Lender acknowledge and
agree that Mezzanine Lender has waived any amortization payment required
pursuant to Section 2.4(A) of the Mezzanine Loan Agreement for the Payment Date
in March 2003 only. Notwithstanding the
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Modification Agreement(Mezzanine)
foregoing to the contrary, the Mezzanine Borrowers acknowledge and agree that
the aggregate amount of the Scheduled Mezzanine Principal Payments (with the
Scheduled Mezzanine Principal Payment for the Payment Date in March 2003 being
deemed to be $64,975) through the Payment Date in March 2003 is $259,900, and
further acknowledge and agree that the aggregate of all principal payments made
by the Mezzanine Borrowers through the Payment Date in March 2003 is $129,950,
and therefore the aggregate Amortization Deficiency through the Payment Date in
March 2003 shall be deemed to be $129,950. Further, the Mezzanine Borrowers
shall cause the Mortgage Borrowers to retain any Excess Cash Flow accruing
during the month of March 2003, which such amounts shall be (i) included in
calculating Excess Cash Flow for the month of April 2003 for all intents and
purposes under the Mezzanine 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 Mezzanine Loan Agreement.
F. The Mezzanine Borrowers acknowledge and agree that the
Mezzanine Loan shall continue to be evidenced by and payable in accordance with
the provisions of the Restated Mezzanine Note and the Mezzanine Loan Agreement,
as hereby confirmed, modified and amended. The Mezzanine Borrowers hereby agree
to perform all of the terms, covenants and provisions contained in the Restated
Mezzanine Note and the Mezzanine Loan Agreement, as hereby confirmed, modified
and amended.
G. The Mezzanine Borrowers represent and warrant that, to the
Mezzanine Borrowers' Knowledge, as of the date hereof, there are no Events of
Default under any of the terms, covenants or provisions of the Mezzanine Loan
Documents and the Mezzanine 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 Mezzanine Loan Documents.
H. The Mezzanine Borrowers represent, warrant and covenant that,
to the Mezzanine Borrowers' Knowledge, there are no offsets, counterclaims or
defenses to the Obligations, this Agreement, or the Mezzanine Loan Documents and
that the Mezzanine Borrowers (and the undersigned representatives of the
Mezzanine 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
Mezzanine 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 Mezzanine 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 Mezzanine
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 Mezzanine Borrowers from the
terms, covenants or provisions of this Agreement shall be effective unless the
same shall be in writing and signed by Mezzanine Lender and, in the case of an
amendment, the Mezzanine Borrowers and any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
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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 Mezzanine 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 Mezzanine Borrowers and Mezzanine
Lender have executed this Agreement as of the day and year first written above.
MEZZANINE BORROWERS:
IMPAC HOTEL GROUP MEZZANINE,
LLC, a Delaware limited liability company
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
SERVICO OPERATIONS MEZZANINE,
LLC, a Delaware limited liability company
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
LODGIAN FINANCING MEZZANINE, LLC, a
Delaware limited liability company
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
ISLAND MOTEL ENTERPRISES, INC.,
a Georgia corporation
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
Modification Agreement(Mezzanine)
PENMOCO, INC.,
a Michigan corporation
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
MEZZANINE LENDER:
MERRILL LYNCH MORTGAGE
LENDING, INC., a Delaware corporation
By: /s/ Steven Glassman
--------------------------------------
Name: Steven Glassman
Title: Authorized Signatory
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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 Mezzanine Note by
the Mezzanine 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
Modification Agreement(Mezzanine)
ACKNOWLEDGEMENT OF PLEDGED SUBSIDIARIES
The undersigned hereby acknowledge receipt of a copy of the foregoing Agreement,
and acknowledge that the Acknowledgement given pursuant to the Pledge Agreement
remains in full force and effect and unmodified and that, to the extent required
by applicable law, the security interests granted under such Pledge Agreement
have been noted in each of the undersigned's books, and agrees that it will
comply with instructions originated by the Mezzanine Lender without further
consent by Pledgor, and waives any rights or requirement at any time hereafter
to receive a copy of such Pledge and Security Agreement in connection with the
registration of any Collateral in the name of the Lender or its nominee or the
exercise of voting rights by the Mezzanine Lender or its nominee.
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,
Modification Agreement(Mezzanine)
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,
Modification Agreement(Mezzanine)
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
Modification Agreement(Mezzanine)
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
ISLAND MOTEL ENTERPRISES, INC.,
a Georgia corporation
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
PENMOCO, INC., a Michigan corporation
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
IMPAC HOTELS MEMBER SPE, INC.,
a Delaware corporation
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
LODGIAN LITTLE ROCK SPE, INC.,
a Delaware corporation
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
SERVICO COLUMBIA II, INC.,
a Maryland corporation
Modification Agreement(Mezzanine)
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
IMPAC HOTELS I, L.L.C.,
a Georgia limited liability company
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
SERVICO PALM BEACH MOTEL
GENERAL PARTNER SPE, INC., a Delaware
corporation,
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
AMIOP ACQUISITION GENERAL PARTNER
SPE CORP., a Delaware corporation
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
Modification Agreement(Mezzanine)
ACKNOWLEDGEMENT OF CERTAIN LIMITED PARTNERSHIP AND
LIMITED LIABILITY COMPANY PLEDGED SUBSIDIARIES
The undersigned have executed this Agreement in order to ratify and confirm that
each Control Acknowledgement dated as of November 25, 2002, executed by the
undersigned remains in full force and effect following the execution and
delivery of this Agreement.
IMPAC HOTELS I, L.L.C.
a Georgia limited liability company
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: VP and Secretary
LODGIAN MEMPHIS PROPERTY OWNER, LLC
a Delaware limited liability company
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: VP and Secretary
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: VP and Secretary
LITTLE ROCK LODGING ASSOCIATES,
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: VP and Secretary
Modification Agreement(Mezzanine)
DEDHAM LODGING ASSOCIATES I,
LIMITED PARTNERSHIP, a Georgia
limited liability company
By: /s/ Daniel E. Ellis
-------------------------------------
Name: Daniel E. Ellis
Title: VP and Secretary
Modification Agreement(Mezzanine)
ACKNOWLEDGEMENT 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 the Jekyll Island Cash Management Agreement only, 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
Modification Agreement(Mezzanine)
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 Jekyll Island Cash Management Agreement, the
Assignments of Management Agreements, and any of the other Mezzanine 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
Modification Agreement(Mezzanine)
SCHEDULE 1
OTHER LOAN DOCUMENTS
1. Pledge Agreement
2. Guaranty
3. Environmental Indemnity
4. Conditional Assignment of Hotel Management Agreement (Mezzanine Loan)
by Manager the Mezzanine Borrowers in favor of Mezzanine Lender
5. Jekyll Island Mortgage
6. Jekyll Island Assignment of Leases and Rents
7. Assignment of Agreements, Licenses, Permits and Contracts (Jekyll
Island) by Penmoco, Inc. and Island Motel Enterprises, Inc. to
Mezzanine Lender
8. Mezzanine Cash Management Agreement (Jekyll Island) among Penmoco,
Inc., Island Motel Enterprises, Inc., Manager and Mezzanine Lender
9. Conditional Assignment of Hotel Management Agreement (Jekyll Island
Property) among Penmoco, Inc., Island Motel Enterprises, Inc., Manager
and Mezzanine Lender
10. Post-Closing Agreement given by the Mezzanine Borrowers
Modification Agreement(Mezzanine)
EXHIBIT A
ALLOCATED LOAN AMOUNT/AGGREGATE ALLOCATED LOAN AMOUNT
AGGREGATE
PROPERTY ALLOCATED LOAN ALLOCATED
NUMBER CHAIN/NAME CITY STATE AMOUNT LOAN AMOUNT
- --------------------------------------------------------------------------------------------------------------------
210 Holiday Inn Sheffield AL $ 835,105.69 $ 3,037,891
220 Holiday Inn Dothan AL $ 252,473.82 $ 918,432
230 Dothan Plaza Hotel Dothan (Ex Hampton) AL $ 603,123.65 $ 2,194,003
240 Holiday Inn Express Attalla (Gadsden) AL $ 466,105.50 $ 1,695,567
505 Courtyard by Marriott Bentonville AR $ 1,553,685.00 $ 5,651,891
560 Residence Inn Little Rock AR $ 1,242,948.00 $ 4,521,513
850 Holiday Inn East Hartford CT $ 640,895.05 $ 2,331,405
1108 Crowne Plaza West Palm Beach FL $ 1,942,106.24 $ 7,064,863
1113 Holiday Inn Express Pensacola FL $ 602,052.94 $ 2,190,108
1116 Holiday Inn Pensacola (University Mall) FL $ 971,053.13 $ 3,532,432
1132 Holiday Inn Winter Haven FL $ 1,320,632.25 $ 4,804,107
1168 Holiday Inn Express Pensacola (Ex Hampton) FL $ 1,137,336.71 $ 4,137,327
1206 Holiday Inn Brunswick GA $ 757,421.44 $ 2,755,297
1212 Courtyard by Marriott Atlanta GA $ 3,665,316.68 $ 13,333,442
1255 Holiday Inn Marietta (hotel & suites) GA $ 427,263.38 $ 1,554,270
1280 Fairfield Inn Valdosta GA $ 971,053.13 $ 3,532,432
1285 Holiday Inn Valdosta GA $ 640,895.05 $ 2,331,405
1310 Holiday Inn Rolling Meadows IL $ 1,825,579.88 $ 6,640,972
1502 Quality Hotel Metairie LA $ 718,579.32 $ 2,613,999
1710 Hilton Columbia MD $ 2,136,316.88 $ 7,771,350
1720 Holiday Inn Silver Spring MD $ 4,592,709.47 $ 16,707,049
1765 Holiday Inn Baltimore, Inner Harbor MD $ 6,408,950.62 $ 23,314,049
1770 Holiday Inn Glen Burnie MD $ 1,029,316.32 $ 3,744,378
1775 Holiday Inn Baltimore - BWI Airport MD $ 4,466,844.37 $ 16,249,186
1776 Holiday Inn Frederick MD $ 990,474.19 $ 3,603,080
1780 Holiday Inn Towson (Cromwell Bridge) MD $ 1,359,474.37 $ 4,945,404
1785 Holiday Inn Baltimore West (Belmont) MD $ 466,105.50 $ 1,695,567
1840 Crowne Plaza Cedar Rapids IA $ 1,398,316.50 $ 5,086,702
1910 Holiday Inn Arden Hills/St. Paul MN $ 1,340,053.31 $ 4,874,756
2007 Courtyard by Marriott Paducah KY $ 1,107,000.57 $ 4,026,972
2035 Courtyard by Marriott Florence KY $ 738,000.37 $ 2,684,648
2040 Hurstbourne Hotel Louisville KY $ 758,224.48 $ 2,758,218
2222 Holiday Inn St. Louis North MO $ 1,553,685.00 $ 5,651,891
2777 Residence Inn Dedham MA $ 1,942,106.24 $ 7,064,863
3311 Crowne Plaza Albany NY $ 4,792,392.49 $ 17,433,443
3314 Holiday Inn Select Niagara Falls NY $ 1,456,579.69 $ 5,298,648
3326 Four Points Niagara Falls NY $ 485,526.55 $ 1,766,216
3330 Holiday Inn Jamestown NY $ 1,048,737.37 $ 3,815,026
3345 Holiday Inn Grand Island NY $ 252,473.82 $ 918,432
3515 Holiday Inn Select Strongsville OH $ 1,942,106.24 $ 7,064,863
3802 Holiday Inn Greentree PA $ 1,398,316.50 $ 5,086,702
3804 Holiday Inn Pittsburgh (Pkwy East) PA $ 524,368.70 $ 1,907,513
3838 Doubletree Club Philadelphia PA $ 2,494,699.37 $ 9,075,049
3875 Holiday Inn York PA $ 718,579.32 $ 2,613,999
3890 Holiday Inn Lancaster PA $ 990,474.19 $ 3,603,080
3930 Hilton Troy (Northfield) MI $ 2,196,513.22 $ 7,990,328
3970 Holiday Inn Lansing MI $ 2,563,580.25 $ 9,325,620
4021 Clarion Charleston SC $ 330,158.05 $ 1,201,027
4040 Holiday Inn SunSpree Myrtle Beach SC $ 1,087,579.49 $ 3,956,324
4215 French Quarter Suites Memphis TN $ 559,641.87 $ 2,035,828
4310 Crowne Plaza Houston TX $ 4,078,423.12 $ 14,836,213
4343 Courtyard by Marriott Abilene TX $ 1,145,842.69 $ 4,168,269
4375 Holiday Inn Austin TX $ 1,048,737.37 $ 3,815,026
4380 Holiday Inn Dallas (Mkt Center) TX $ 388,421.25 $ 1,412,973
4388 Holiday Inn Select Dallas (DFW Airport) TX $ 2,330,527.50 $ 8,477,836
Jekyll Island $ 1,385,641.92 $ 1,385,642
TOTAL 56 PROPERTIES $84,080,526.00 $302,207,526
Modification Agreement(Mezzanine)