EXHIBIT 10.2.4
NOTE SEVERANCE AGREEMENT
THIS NOTE SEVERANCE AGREEMENT made as of this 31st day of
March, 2003, between MERRILL LYNCH MORTGAGE LENDING, INC., having an address at
4 World Financial Center, New York, New York 10080 ("LENDER"), and the
undersigned, each having an address c/o Lodgian, Inc., 3445 Peachtree Road, NE,
Suite 700, Atlanta, Georgia 30326, jointly and severally (each, a "BORROWER",
and collectively, "BORROWERS").
WITNESSETH:
WHEREAS, Lender is now the lawful owner and holder of 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 amended,
modified or restated from time to time, collectively, the "ORIGINAL MORTGAGE")
executed by the Borrower named therein as more particularly described in Exhibit
A attached hereto, which Original Mortgage is a valid first lien encumbering
such Borrower's fee simple or leasehold interest in and to certain real property
as described therein and the buildings and improvements now or hereafter located
thereon (the "PREMISES");
WHEREAS, the Original Mortgage secures an original principal
sum of $224,036,325, together with interest and all other sums due thereon,
evidenced by that certain promissory note in the original principal sum of
$224,036,325 made by Borrowers, as makers, to Lender, as payee, dated as of
November 25, 2002 (the "ORIGINAL NOTE");
WHEREAS, Borrowers are the owners of the Premises; and
WHEREAS, Lender and Borrowers have agreed to modify the
Original Note and sever the indebtedness evidenced thereby into two separate and
distinct debts and to execute replacement notes pursuant to said severance to
evidence and secure such debts, as so severed.
NOW, THEREFORE, in consideration of the mutual agreements
herein expressed, the parties hereto covenant and agree as follows:
1. The Original Note evidences a principal indebtedness
in the amount of $224,036,325 with interest thereon, without, to Borrower's
Knowledge, defense, offset or counterclaim of any kind. Borrowers and Lender
hereby agree that the current outstanding principal balance of the Original Note
is $223,666,275. From and after the date hereof the outstanding principal
indebtedness shall be, and hereby is, severed into two separate and distinct
portions as follows:
(a) a principal indebtedness of $218,127,000;
and
(b) a principal indebtedness of $5,539,275.
2. In order to evidence the severance of the principal
indebtedness, Borrowers have executed and delivered to Lender two replacement
notes in substitution for the Original Note in the respective amounts of
$218,127,000 ("AMENDED AND RESTATED PROMISSORY
NOTE A"), and $5,539,275 ("PROMISSORY NOTE B") which amounts constitute, in the
aggregate, the same principal indebtedness evidenced by the Original Note and
outstanding thereunder as of the date hereof, and which Amended and Restated
Promissory Note A and Promissory Note B do not create or evidence any new or
further indebtedness.
3. Nothing contained in this Agreement or in Amended and
Restated Promissory Note or Promissory Note B shall or shall be deemed to (a) be
construed as a substitution or novation of the indebtedness, or otherwise
extinguish the indebtedness, evidenced by the Original Note or (b) extinguish or
release the lien of the Original Mortgage.
4. The terms of this Agreement constitute the entire
understanding and agreement of the parties hereto and supersede all prior
agreements, understandings and negotiations between Borrowers and Lender with
respect to the matters herein set forth. This Agreement, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act on the part of Borrowers or Lender, but only by
an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
5. This Agreement may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument. 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.
6. THIS AGREEMENT WAS NEGOTIATED IN NEW YORK, AND MADE
BETWEEN BORROWERS AND LENDER IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES
AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING
TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. 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 SUCH STATE AND ANY APPLICABLE LAW
OF THE UNITED STATES OF AMERICA.
7. Lender and Borrowers shall execute and deliver all
such assurances, confirmations and assignments in connection with this Agreement
as either party shall from time to time reasonably require.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
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,
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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,
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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
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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
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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
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Name: Steven Glassman
Title: Authorized Signatory
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