EXHIBIT 10.32
FORM OF
COLLATERAL ASSIGNMENT OF INTEREST RATE PROTECTION AGREEMENT
This COLLATERAL ASSIGNMENT OF INTEREST RATE PROTECTION AGREEMENT,
dated as of June __, 2004 (this "ASSIGNMENT"), made by the undersigned, having
an address at c/o Lodgian, Inc., 3445 Peachtree Road, NE, Suite 700, Atlanta,
Georgia 30326 ("ASSIGNOR"), in favor of MERRILL LYNCH MORTGAGE LENDING, INC., a
Delaware corporation, having an address at Four World Financial Center, New
York, New York 10080 (together with its successors, transferees and assigns,
"ASSIGNEE"). Capitalized terms used but not defined herein shall have the
meanings assigned such terms in that certain Mezzanine Loan Agreement, dated as
of the date hereof (as amended, modified or restated, the "MEZZANINE LOAN
AGREEMENT"), between Assignor and Assignee.
1. For good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Assignor hereby pledges, assigns, transfers and
grants a security interest to Assignee in and to all its right, title and
interest in, to and under (a) the interest rate hedge or protection agreement
and any related confirmation described on EXHIBIT A attached hereto and made a
part hereof (such agreement(s) and confirmation(s), as same may be amended or
modified, and any renewals or replacements thereof, or successor agreements
thereto, collectively, the "RATE PROTECTION AGREEMENT"), with the counterparty
indicated on the signature page hereof (the "COUNTERPARTY"), and (b) all amounts
received or receivable under the Rate Protection Agreement and all "proceeds"
(as defined in the Uniform Commercial Code adopted in the State of New York (the
"UCC")) thereof, to have and to hold the same, unto Assignee, its successors and
assigns. This Assignment constitutes additional security for payment by Assignor
of that certain loan in the original principal amount of **[$_________]** from
Lender to Assignor evidenced by or arising pursuant to the Mezzanine Loan
Agreement and pursuant to the other Loan Documents.
2. Counterparty hereby consents to the above collateral assignment
by Assignor of the Rate Protection Agreement and agrees that Counterparty will
make any payments to become payable under or pursuant to the Rate Protection
Agreement to, or at the direction of, Assignee from time to time, until such
time as this Assignment is terminated or otherwise canceled, at which time
Counterparty will be instructed to make payments to, or at the direction of,
Assignor. Assignor hereby irrevocably instructs and authorizes Counterparty to
make any payments payable pursuant to the Rate Protection Agreement to Assignee
by wire transfer to the Lock Box Account at the following address:
Wachovia Bank, National Association
ABA #: 053-000-219
Account #: **[_______________________]**
Account Name: Mezzanine Lock Box Account for the benefit of Merrill
Lynch Mortgage Lending, Inc., as secured party
3. Upon the occurrence and during the continuance of an Event of
Default, Assignee shall be entitled to exercise all remedies provided under the
UCC with respect to the Rate Protection Agreement and the other related
collateral pledged hereunder.
4. Assignor hereby covenants and agrees that Assignor shall not,
without first obtaining Assignee's written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, convey, assign, sell, mortgage,
encumber, pledge, hypothecate, grant a security interest in, grant an option or
options with respect to, or otherwise dispose of (directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, and whether or
not for consideration) the Rate Protection Agreement or any interest therein,
provided, however, Assignor shall be permitted to assign or otherwise transfer
the Rate Protection Agreement in connection with a Permitted Assumption pursuant
to Section 11.3 of the Mezzanine Loan Agreement. Assignor and Counterparty
hereby covenant and agree that Assignor and Counterparty shall not, without
first obtaining Assignee's written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, amend, modify, cancel or
terminate the Rate Protection Agreement.
5. This Assignment shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of law
principles.
6. This Assignment shall terminate upon payment in full of the
Obligations of Assignor under the Loan Documents.
7. This Assignment shall be binding upon Assignor and its successors
and assigns and shall inure to the benefit of Assignee and its successors and
assigns.
8. Subject to the terms of the Mezzanine Loan Agreement, Assignee
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, Assignee may sell, transfer and
assign this Assignment and certain other Loan Documents. All references to
"Assignee" hereunder shall be deemed to include the successors and assigns of
Assignee and the parties hereto acknowledge that actions taken by Assignee
hereunder may be taken by Assignee's agents and by the agents of the successors
and assigns of Assignee.
9. In consideration of the foregoing agreement by Counterparty,
Borrower agrees that (a) Counterparty shall be entitled to conclusively rely
(without any independent investigation) on any notice or instructions from
Lender in respect of the Rate Protection Agreement, and (b) Counterparty shall
be held harmless and shall be fully indemnified by Borrower, from and against
any and all claims, other than those ultimately determined to be founded on
gross negligence or willful misconduct of Counterparty, and from and against any
damages, penalties, judgments, liabilities, losses or expenses (including
reasonable attorney's fees and disbursements) incurred by Counterparty as a
result of the assertion of any claim, by any person or entity, arising out of,
or otherwise related to, any actions taken or omitted to be taken by
Counterparty in reliance upon any such instructions or notice provided by Lender
in accordance herewith and the Mezzanine Loan Agreement.
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10.This Assignment may be executed in any number of counterparts
each of which shall be an original, but all of which shall constitute one
instrument.
11.The obligations of Assignor hereunder are subject to limitations
on recourse as provided in Article XII of the Mezzanine Loan Agreement.
[SIGNATURE PAGES FOLLOW]
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ASSIGNOR:
[LODGIAN ENTITY]
[__________________________________]
By:________________________________
Name: Daniel E. Ellis
Title: Vice President
ACKNOWLEDGED AND AGREED BY COUNTERPARTY:
[__________________________________]
By:________________________________
Name:
Title:
EXHIBIT A
(Description of Rate Cap Agreement)
Confirmation dated as of _____________, 2004 and effective as of
_____________, 2004, by and between _____________________________, as Party A,
and Assignor, as Party B, and any replacements thereof confirming the
Transactions (as defined therein), together with _________________, Guaranty of
____________________, dated as of ____________, 2004 and effective as of
____________, 2004 and made in connection with the Rate Protection Agreement.
Mezzanine Collateral Assignment of Interest
Rate Protection Agreement