EXHIBIT 10.30
FORM OF
ASSIGNMENT OF AGREEMENTS, LICENSES,
PERMITS AND CONTRACTS
This ASSIGNMENT OF AGREEMENTS, LICENSES, PERMITS AND CONTRACTS,
dated as of June __, 2004 (this "ASSIGNMENT"), made by the undersigned, each
having an address at c/o Lodgian, Inc., 3445 Peachtree Road, NE, Suite 700,
Atlanta, Georgia 30326 (collectively, "BORROWER"), to MERRILL LYNCH MORTGAGE
LENDING, INC., a Delaware corporation, having an address at 4 World Financial
Center, New York, New York 10080 (together with its successors, transferees and
assigns, "LENDER").
W I T N E S S E T H:
WHEREAS:
A. Borrower is the owner of a fee simple and leasehold interest, as
the case may be, in those certain parcels of real property (collectively, the
"PREMISES") described in EXHIBIT A attached hereto, and the buildings,
structures, fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and other improvements now or hereafter located thereon
(the "IMPROVEMENTS"; together with the Premises, collectively, the "PROPERTY");
B. Borrower and Lender have entered into a certain Loan and Security
Agreement, dated as of the date hereof (as amended, modified or restated from
time to time, the "LOAN AGREEMENT"), pursuant to which Lender has agreed to make
a loan to Borrower as more particularly described below. Capitalized terms used
herein and not herein defined shall have the meanings assigned to such terms in
the Loan Agreement.
C. Pursuant to the Loan Agreement, Lender is making a Loan to
Borrower in the aggregate original principal amount of ___________________
Dollars ($___________) (the "LOAN"). The Loan is evidenced by those certain
Promissory Notes, each dated as of the date hereof (as amended, modified or
restated from time to time, collectively, the "NOTE") and secured by, inter
alia, 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 "SECURITY
INSTRUMENT"), with respect to the Property and Improvements.
D. To induce Lender to make the Loan and to secure payment of the
Note, together with interest thereon, Borrower has agreed to the execution and
delivery of this Assignment.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10) and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Borrower hereby absolutely grants a first lien on and
security interest in, and hereby assigns, transfers and sets over to Lender as
additional security for the payment of the Loan and the observance and
performance by the Borrower of the terms, covenants and conditions of the Loan
Documents on the part of the Borrower to be observed or performed, all of the
Borrower's right, title and interest in and to the following:
(a)to the extent assignable, all of Borrower's right, title
and interest in, to and under the documents, contracts, instruments, plans,
permits, licenses (including, without limitation, all liquor licenses and other
beverage permits), approvals, applications, trade names and trademarks
(including, without limitation, any licenses of, or agreements to license, trade
names or trademarks now or hereafter entered into by or on behalf of Borrower or
Manager in connection with the operation of the Property), insurance policies,
equipment leases, purchase and sale agreements, and other instruments described
or existing with respect to the Property or any portion thereof, and any
amendments or modifications thereto, any replacements thereof executed during
the term of the Note and any other similar documents or instruments with respect
to the Property or any portion thereof, now in existence or hereafter executed
by Borrower or now in the possession of Borrower or hereafter obtained by
Borrower (collectively, the "DOCUMENTS");
(b)to the extent assignable, all rights, powers, privileges,
claims, remedies and causes of action of every kind which Borrower now has or
may in the future have with respect to or by reason of its interest in the
Documents; and
(c)to the extent assignable, any and all proceeds (including
non-cash proceeds) of any of the foregoing (the items enumerated in the
preceding subparagraphs (a) and (b) and in this subparagraph (c) being
hereinafter collectively referred to as the "COLLATERAL").
1. This Assignment is given to secure the obligations of Borrower
under and in respect of (a) the Note and (b) the other Loan Documents. The
parties intend that this Assignment shall be a present, actual, absolute and
unconditional assignment and shall, immediately upon execution, give Lender the
right to assume Borrower's interest in the Collateral; provided, however, that
unless an Event of Default under any of the Loan Documents shall have occurred
and be continuing, Borrower shall have a license to utilize the Collateral in
accordance with the terms thereof. If an Event of Default shall have occurred
and be continuing under any of the Loan Documents, Borrower's license mentioned
in the immediately preceding sentence shall cease and terminate, without the
execution of any further instrument or document or the taking of any other act
on the part of Lender, and in such event, subject to the terms of the Loan
Agreement and the other Loan Documents, Lender shall be entitled to utilize the
Collateral in Borrower's place and stead, in the name of Borrower or otherwise,
and in furtherance thereof, subject to the terms of the Loan Agreement and the
other Loan Documents, Lender may enter upon the Property and take possession of
the Property by its officers, agents or employees, or by a court-appointed
receiver, and for the operation, protection, repair and maintenance of the
Property, and in connection therewith, Lender shall be entitled to take
possession of and use all books of account and financial records of Borrower and
its property managers or representatives relating to the Property.
2. Neither this Assignment nor any action or inaction on the part of
Lender shall constitute an assumption on the part of Lender of any duty or
obligation with respect to the Collateral, nor shall Lender have any duty or
obligation to make any payment to be made by Borrower under the Collateral, or
to present or file any claim, or to take any other action to
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collect or enforce the payment of any amounts or the performance of any
obligations which have been assigned to Lender or to which it may be entitled
hereunder at any time or times. No action or inaction on the part of Lender
shall adversely affect or limit in any way the rights of Lender hereunder or
under the Collateral, and Lender shall not incur any liability on account of any
action taken (or not taken) by it or on its behalf in connection with the
Collateral in good faith, whether or not the same shall prove to be improper,
inadequate or invalid, in whole or in part.
3. Borrower shall indemnify and hold Lender harmless from and
against any and all liabilities, losses and damages which Lender may incur by
reason of this Assignment and any actions of Lender taken (or not taken) in
connection with the Collateral, and from and against any and all claims and
demands whatsoever which may be asserted against Lender by reason of any alleged
obligations to be performed or discharged by Lender by reason of this
Assignment, and the amount thereof, including reasonable costs, expenses and
reasonable attorneys' fees and disbursements, together with interest on such
amount, at the Default Rate under the Note from the date such costs, expenses
and fees were incurred by Lender to the date of payment thereof to Lender by
Borrower, shall be secured hereby and by the other Loan Documents, and Borrower
shall reimburse Lender therefor within twenty (20) days after demand, and upon
the failure of Borrower to do so, the same shall be deemed an Event of Default
under the Loan Agreement for which Lender shall be entitled to exercise any and
all rights and remedies provided therein or at law or in equity; provided,
however, that in no event shall Borrower be required to indemnify or hold
harmless Lender for any liabilities, losses or damages resulting from Lender's
bad faith, gross negligence or willful misconduct. It is further understood that
this Assignment shall not operate to constitute Lender as a lender in possession
of the Property, or to place responsibility for the control, care, management or
repair of the Improvements upon Lender, nor shall it operate to make Lender
responsible or liable (as to Borrower) for any waste committed with respect to
the Property by any party, or for any Hazardous Material placed upon or found at
the Property, or for any dangerous or defective condition of the Improvements or
for any negligence in the management, up-keep, repair or control of the
Improvements resulting in loss, injury, death or damage to any contractor,
sub-contractor, licensee, invitee, employee, or other party, or for any other
thing or matter whatsoever.
4. Borrower shall remain liable to, and shall, perform all of its
obligations under and with respect to the Collateral and shall, at its sole cost
and expense, enforce the Collateral in the ordinary course of business and
comply in all material respects with all of its obligations under the Collateral
and all the terms thereof. Borrower shall give Lender prompt notice of any
material default by any party under the Collateral. So long as (a) Borrower is
acting in the ordinary course of business, and (b) no Event of Default has
occurred and is continuing under any of the Loan Documents, except as otherwise
provided in the Loan Agreement, Borrower may alter, amend, extend, modify,
change, cancel or terminate any of the Collateral, provided that such
alterations, amendments, extensions, modifications, changes, cancellations and
terminations, taken as a whole, are not likely to result in a Material Adverse
Effect, and, except as otherwise provided in the Loan Agreement, Borrower may
enter into new Collateral on commercially reasonable terms without Lender's
prior written consent in each instance; provided, however, that Borrower shall
provide Lender with copies of any such alterations, amendments, extensions,
modifications, changes, cancellations, and terminations of
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the Collateral upon request of Lender unless otherwise required to be provided
pursuant to the Loan Agreement.
5. Upon the occurrence and during the continuance of an Event of
Default under any of the Loan Documents, Lender shall be entitled to all of the
rights, remedies, powers and privileges available to a secured party under the
Uniform Commercial Code in any jurisdiction whose laws may apply and this
Assignment shall constitute a direction to and full authority to any person or
entity which has contracted with or is a party to any of the Documents
(collectively, the "CONTRACTING PARTIES", and individually, a "CONTRACTING
PARTY") to perform its obligations under the Documents for the benefit of Lender
without proof to any Contracting Party of the default of Borrower. In addition,
Borrower agrees that it shall, promptly upon request of Lender following such
Event of Default, execute and deliver notices to the Contracting Parties
directing that future performance of such Contracting Parties' obligations be
made at the direction of Lender. Borrower hereby irrevocably authorizes each of
the Contracting Parties to rely upon and comply with any notice or demand by
Lender for the performance by any such Contracting Party of its obligations
under any Document for the benefit of Lender, and no Contracting Party shall
have any right or duty to inquire whether an Event of Default has actually
occurred, and Borrower shall have no right to countermand its authorization
herein to the Contracting Parties to perform for the benefit of Lender.
6. Borrower represents and warrants that it has full right, power
and authority, pursuant to its certificate of limited partnership and limited
partnership agreement, certificate of formation and limited liability company
agreement, or certification of incorporation and by-laws, as the case may be, to
assign the Collateral assigned hereby and that (a) to Borrower's knowledge, the
Documents in existence on the date hereof, are in full force and effect in
accordance with their respective terms, (b) Borrower has delivered to Lender
true and complete copies of the material Documents in existence as of the date
hereof, (c) neither the Collateral nor any part thereof has been assigned,
pledged or encumbered by Borrower except pursuant to this Assignment and the
other Loan Documents, (d) to Borrower's knowledge, no default or event of
default which remains uncured beyond the expiration of any applicable grace or
notice period which could reasonably be expected to have a Material Adverse
Effect has occurred and is continuing hereunder and no Event of Default or
Default has occurred, (e) to Borrower's knowledge, none of the Contracting
Parties has any defense, set-off or counterclaim against Borrower to the
performance of any obligations of such respective Contracting Party, and (f) its
principal place of business is its address for notices as set forth in the Loan
Agreement
7. Borrower, at its expense, shall execute and deliver all such
instruments and take all such action as Lender, from time to time, may
reasonably request in order to obtain the full benefits of this Assignment and
of the rights and powers herein created and to maintain and perfect the security
interest granted in this Assignment. To the extent permitted by law, Borrower
irrevocably authorizes Lender, at the expense of Borrower, to file financing
statements and continuation statements with respect to the Collateral that
Lender deems appropriate or desirable without the signature of Borrower.
8. Wherever there is any conflict or inconsistency between any terms
or provisions of this Assignment and the Loan Agreement, the terms and
provisions of the Loan Agreement shall control.
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9. All rights and remedies herein conferred may be exercised whether
or not sale proceedings are pending under the Security Instrument or any other
action or proceeding has been commenced under any of the other Loan Documents.
Lender shall not be required to resort first to the security of this Assignment
before resorting to the security of the Security Instrument or any of the other
Loan Documents and Lender may exercise the security hereof or thereof
concurrently or independently and in any order of preference.
10. This Assignment shall automatically terminate upon payment in
full of all sums due Lender under the Note, the Loan Agreement, and the other
Loan Documents, and any other indebtedness secured by the Security Instrument.
11. All notices, demands, consents, or requests which are either
required or desired to be given or furnished hereunder shall be sent and shall
be effective in the manner set forth in Section 14.5 of the Loan Agreement.
12. The provisions of this Assignment shall be binding upon
Borrower, its successors and assigns, and all persons claiming under or through
Borrower or any such successor or assign, and shall inure to the benefit of and
be enforceable by Lender and its successors and assigns. Subject to the terms of
the Loan Agreement, Lender shall have the right to assign this Assignment and
the obligations hereunder in connection with any assignment or transfer of all
or any portion of the Loan or any interest therein. The parties hereto
acknowledge that following the execution and delivery of this Assignment, Lender
may sell, transfer and assign this Assignment and certain other Loan Documents.
All references to "Lender" hereunder shall be deemed to include the assigns of
Lender and the parties hereto acknowledge that actions taken by Lender hereunder
may be taken by Lender's agents and by the agents of the assigns of Lender.
13. This Assignment shall constitute a security agreement for all
purposes under the Uniform Commercial Code as in effect in the State where the
applicable Property is located.
14. This Assignment and the obligations arising hereunder shall be
governed by and construed in accordance with the laws of the State of New York
and any applicable laws of the United States of America, except that at all
times the provisions for the creation, perfection, attachment and enforcement of
the liens and the security interests created pursuant to this Assignment shall
be governed by the laws of the State where the applicable Property is located.
15. Neither this Assignment nor any provision hereof may be changed,
waived or terminated orally, but only by an instrument in writing signed by
Lender and Borrower.
16. If any of the provisions of this Assignment, or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Assignment, or the application of such
provision or provisions to persons or circumstances other than those to whom or
which it is held invalid or unenforceable, shall not be affected thereby and
every provision of this Assignment shall be valid and enforceable to the fullest
extent permitted by law.
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17. The obligations of Borrower hereunder are subject to limitations
on recourse as provided in Article XII of the Loan Agreement.
IN WITNESS WHEREOF, the Borrower has duly executed this instrument
as of the day and year first above written.
BORROWERS:
[LODGIAN ENTITIES]
By:____________________________________
Name: Daniel E. Ellis
Title: Vice President and Secretary,
or Authorized Signatory for
each of the entities listed
above
EXHIBITS A
PROPERTIES
CHAIN/NAME CITY ST