Exhibit 10.3.6
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "ASSUMPTION") is made as of
the 31st day of March, 2003 by and among the entities listed on Schedule 1
(collectively "ASSIGNORS") and IMPAC HOTEL GROUP MEZZANINE, LLC, SERVICO
OPERATIONS MEZZANINE, LLC, LODGIAN FINANCING MEZZANINE, LLC, ISLAND MOTEL
ENTERPRISES, INC., and PENMOCO, INC. (collectively, "ASSIGNEES").
RECITALS
WHEREAS, Merrill Lynch Mortgage Lending, Inc. (in such capacity,
"MEZZANINE LENDER") previously made a loan in the principal sum of $78,671,201
(the "ORIGINAL MEZZANINE LOAN") to the Assignees, 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 Assignees to
Mezzanine Lender (the "ORIGINAL MEZZANINE NOTE") and the Mezzanine Loan
Agreement dated as of November 25, 2002, among the Assignees and Mezzanine
Lender;
WHEREAS, Merrill Lynch Mortgage Lending, Inc. (in such capacity,
"MORTGAGE LENDER") previously made a loan in the principal sum of $224,036,325
(the "ORIGINAL MORTGAGE LOAN") to the Assignors, 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 Assignors to
Mortgage Lender (the "ORIGINAL MORTGAGE NOTE") and the Loan and Security
Agreement dated as of November 25, 2002, among the Assignors and Mortgage
Lender;
WHEREAS, at the time of origination of the Original Mezzanine Loan and
the Original Mortgage Loan, each of the Assignees and the Assignors agreed, in
consideration of making the Mezzanine Loan and the Original 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 obligations of the Assignees and the Assignors 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;
WHEREAS, in connection with the Resizing, pursuant to the terms of
that certain Note Severance Agreement dated as of the date hereof among the
Assignors 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 Assignees are to assume
the repayment obligations under and pursuant to the terms of the Assumed Note;
WHEREAS, in connection with the Resizing, Mortgage Lender will assign
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 will succeed to all right, title and interest in and to the Assumed
Note.
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
Assignees and the Assignors hereby agree as follows:
AGREEMENT
SECTION 1. RECITALS. The Recitals are hereby incorporated herein by
this reference.
SECTION 2. DEFINITIONS. All terms used in this Assumption and not
otherwise defined herein shall have the same meaning as set forth in the
Mortgage Loan Agreement.
SECTION 3. ASSIGNMENT BY ASSIGNORS; ASSUMPTION BY ASSIGNEES. The
Assignors hereby assign to the Assignees all of the Assignors' obligations
under the Assumed Note. The Assignees covenants, promises and agree (a) to
accept, assume and perform each and all of the Assignors' obligations which
have arisen, or which may hereafter arise, at the times, in the manner and in
all respects as provided herein, in the Assumed Note, and (b) to be bound by
each and all of the terms and provisions of the Assumed Note. The Assignor is
hereby released from any obligations which first arise after the date hereof
under the Assumed Note. On and after the date hereof, the Assignees shall be
deemed to be the "BORROWERS" for all purposes of the Assumed Note.
SECTION 4. REPRESENTATIONS AND WARRANTIES BY THE ASSIGNORS. The
Assignors makes the following representations and warranties:
(a) ORGANIZATION. Each of the Assignors (i) are duly
organized and existing under the laws of their respective states of
organization, (ii) have power and authority to enter into and execute and
deliver this Assumption, which has been approved by all proper and necessary
action by the Assignors.
(b) BINDING AGREEMENT. This Assumption has been properly
executed by the Assignors and constitutes the valid and legally binding
obligations of the Assignors; and this Assumption and each of the other
documents executed and delivered by the Assignors in connection therewith are
enforceable against the Assignors in accordance with their respective terms.
SECTION 5. REPRESENTATIONS AND WARRANTIES BY THE ASSIGNEES. The
Assignees makes the following representations and warranties:
(a) ORGANIZATION. Each of the Assignees (i) are duly
organized and existing under the laws of their respective states of
organization, (ii) have the power and authority to enter into and execute and
deliver this Assumption, which has been approved by all proper and necessary
action by the Assignees.
2
(b) BINDING AGREEMENT. This Assumption has been properly
executed by the Assignees and constitutes the valid and legally binding
obligations of the Assignees; and the Assumed Note, this Assumption, and each
of the other documents executed and delivered by the Assignees are enforceable
against the Assignees in accordance with their respective terms.
(c) ADDITIONAL DOCUMENTS. The Assignees will execute and
deliver such additional instruments and perform such additional acts as may be
necessary, in the opinion of the Assignors to carry out the intent hereof.
SECTION 6. GOVERNING LAW. 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.
[REMAINDER OF PAGE LEFT BLANK]
3
IN WITNESS WHEREOF, the undersigned Assignees and Assignors have
executed this Assumption as of the day and year first written above.
ASSIGNEES:
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,
4
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
5
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
6
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
ASSIGNEES:
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
7
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
8
ACKNOWLEDGEMENT OF MORTGAGE LENDER
The undersigned has executed this Assumption in order to signify its
consent to the assignment and assumption of the Assumed Note, and the release
of the Assignor from any obligations under the Assumed Note first arising after
the date hereof.
MORTGAGE LENDER:
By: /s/ Steven Glassman
----------------------------------------
Name: Steven Glassman
Title: Authorized Signatory