EXHIBIT 10.22.2
FORM OF MEZZANINE NOTE (FLOATING)
_______ JUNE __, 2004
FOR VALUE RECEIVED, LODGIAN MEZZANINE FLOATING, LLC, a Delaware limited
liability company, having an address c/o Lodgian, Inc., 3445 Peachtree Road, NE,
Suite 700, Atlanta, Georgia 30326 ("MEZZANINE Borrower"), promises to pay to the
order of MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (together
with its successors and assigns, "MEZZANINE LENDER"), at 4 World Financial
Center, New York, New York 10080, or such other place as Mezzanine Lender may
designate in writing, the principal sum of _______________________, with
interest on the unpaid principal balance from the date of this Mezzanine Note,
until paid, at the Interest Rate in effect from time to time hereunder. This
Mezzanine Note may be referred to herein as the "MEZZANINE NOTE," and the loan
evidenced hereby may be referred to herein as the "MEZZANINE LOAN." Capitalized
terms used but not otherwise defined herein shall have the respective meanings
given thereto in the Mezzanine Loan Agreement (hereinafter defined).
PAYMENTS OF PRINCIPAL AND INTEREST. Mezzanine Borrower shall make payments
of principal and interest on the outstanding principal balance of this Mezzanine
Note in accordance with the terms and provisions of Section 2.4 of the Mezzanine
Loan Agreement.
The entire outstanding principal balance of the Mezzanine Loan, all
accrued and unpaid interest thereon (including interest through the end of the
Interest Accrual Period then in effect) and all other amounts due hereunder and
under the other Mezzanine Loan Documents (collectively, the "DEBT") if not
sooner paid (and unless Mezzanine Borrower shall extend the term of the
Mezzanine Loan for the First Extension Term, the Second Extension Term, or all
Extension Terms) shall be due and payable on the Payment Date in June 2006 (the
"SCHEDULED MATURITY DATE"). Subject to the terms and conditions of Section
2.5(B) of the Mezzanine Loan Agreement, Mezzanine Borrower may extend the term
of the Mezzanine Loan for the Extension Terms. The Scheduled Maturity Date, as
the same may be extended for the First Extension Term, the Second Extension
Term, or the Third Extension Term (subject to the terms and conditions of
Section 2.5(B) of the Mezzanine Loan Agreement), or such other date on which the
final payment of the Debt becomes due hereunder or under the Mezzanine Loan
Agreement or the other Mezzanine Loan Documents, whether at such stated maturity
date, by acceleration, or otherwise, shall be referred to herein as the
"MATURITY DATE".
Interest on the principal sum of this Mezzanine Note shall be calculated
on the basis of a 360 day year, and shall be charged for the actual number of
days elapsed during any month or other accrual period.
SECURITY; MEZZANINE LOAN DOCUMENTS. This Mezzanine Note is being executed
and delivered pursuant to that certain Mezzanine Loan Agreement, dated as of the
date hereof (as amended, modified or restated from time to time, the "MEZZANINE
LOAN AGREEMENT"), between Mezzanine Borrower and Mezzanine Lender, to which
reference is hereby made for the terms and conditions governing this Mezzanine
Note, including the terms and conditions under
which this Mezzanine Note may be prepaid or its maturity accelerated. This
Mezzanine Note is secured by, among other things, that certain Pledge and
Security Agreement, dated as of the date hereof (as amended, modified or
restated from time to time, the "PLEDGE AGREEMENT"), executed by Mezzanine
Borrower, pledging its 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
(collectively, the "PLEDGED INTERESTS") in favor of Mezzanine Lender. This
Mezzanine Note, the Mezzanine Loan Agreement, the Pledge Agreement and all other
documents or instruments given by Mezzanine Borrower or any guarantor and
accepted by Mezzanine Lender for purposes of evidencing, securing, perfecting,
or guaranteeing the indebtedness evidenced by this Mezzanine Note may be
referred to as the "MEZZANINE LOAN DOCUMENTS."
PREPAYMENT; PREPAYMENT CONSIDERATION. Mezzanine Borrower shall have no
right to prepay the Mezzanine Loan in whole or in part except as expressly
provided in Section 2.6 of the Mezzanine Loan Agreement.
EVENTS OF DEFAULT; ACCELERATION. Upon the occurrence and during the
continuance of any Event of Default, at the option of Mezzanine Lender and
without notice, the entire principal amount and all interest accrued and
outstanding hereunder and all other amounts outstanding under any of the
Mezzanine Loan Documents shall at once become due and payable, and Mezzanine
Lender may exercise any and all of its rights and remedies under any of the
Mezzanine Loan Documents or pursuant to applicable law. Mezzanine Lender may so
accelerate such obligations and exercise such remedies at any time after the
occurrence of any Event of Default, regardless of any prior forbearance.
LATE CHARGES; DEFAULT INTEREST. If an Event of Default relating to
non-payment of any principal, interest or other sums due under this Mezzanine
Note or under any of the other Mezzanine Loan Documents shall occur, then
Mezzanine Borrower shall pay to Mezzanine Lender, in addition to all sums
otherwise due and payable, a late charge in an amount equal to five percent
(5.0%) of such principal, interest or other sums due hereunder or under any
other Mezzanine Loan Document (or, in the case of a partial payment, the unpaid
portion thereof), such late charge to be immediately due and payable without
demand by Mezzanine Lender.
Upon the occurrence and during the continuance of an Event of Default and
in any event from and after the Maturity Date of the Mezzanine Loan, the
outstanding principal balance of this Mezzanine Note and all other Obligations
shall bear interest until paid in full at a rate per annum (the "DEFAULT RATE")
equal to the sum of (i) five percent (4.0%) and (ii) the Interest Rate otherwise
applicable under this Mezzanine Note.
Mezzanine Borrower agrees that such late charge and Default Rate of
interest are reasonable and do not constitute a penalty.
INTEREST LAWS. Notwithstanding any provision to the contrary contained in
this Mezzanine Note, the Mezzanine Loan Agreement or the other Mezzanine Loan
Documents, Mezzanine Borrower shall not be required to pay, and Mezzanine Lender
shall not be permitted to collect, any amount of interest in excess of the
maximum amount of interest permitted by law ("EXCESS INTEREST"). If any Excess
Interest is provided for or determined by a court of competent
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jurisdiction to have been provided for in this Mezzanine Note, the Mezzanine
Loan Agreement or in any of the other Mezzanine Loan Documents, then in such
event: (i) the provisions of this subsection shall govern and control; (ii)
Mezzanine Borrower shall not be obligated to pay any Excess Interest; (iii) any
Excess Interest that Mezzanine Lender may have received hereunder shall be, at
Mezzanine Lender's option, (a) applied as a credit against either or both of the
outstanding principal balance of the Mezzanine Loan or accrued and unpaid
interest thereunder (not to exceed the maximum amount permitted by law), (b)
refunded to the payor thereof, or (c) any combination of the foregoing; (iv) the
interest rate(s) provided for herein shall be automatically reduced to the
maximum lawful rate allowed from time to time under applicable law (the "MAXIMUM
RATE"), and this Mezzanine Note, the Mezzanine Loan Agreement and the other
Mezzanine Loan Documents shall be deemed to have been and shall be, reformed and
modified to reflect such reduction; and (v) Mezzanine Borrower shall not have
any action against Mezzanine Lender for any damages arising out of the payment
or collection of any Excess Interest. Notwithstanding the foregoing, if for any
period of time interest on any Obligation is calculated at the Maximum Rate
rather than the applicable rate under this Mezzanine Note, and thereafter such
applicable rate becomes less than the Maximum Rate, the rate of interest payable
on such Obligations shall, to the extent permitted by law, remain at the Maximum
Rate until Mezzanine Lender shall have received or accrued the amount of
interest which Mezzanine Lender would have received or accrued during such
period on Obligations had the rate of interest not been limited to the Maximum
Rate during such period. If the Default Rate shall be finally determined to be
unlawful, then the Interest Rate shall be applicable during any time when the
Default Rate would have been applicable hereunder, provided however that if the
Maximum Rate is greater or lesser than the Interest Rate, then the foregoing
provisions of this paragraph shall apply.
CERTAIN RIGHTS AND WAIVERS. From time to time, without affecting the
obligation of Mezzanine Borrower or its permitted successors or assigns to pay
the outstanding principal balance of this Mezzanine Note, interest thereon and
other amounts due hereunder and to observe the covenants contained herein, in
the Mezzanine Loan Agreement, the Pledge Agreement or in any other Mezzanine
Loan Document, without affecting the guaranty of any person or entity for
payment of the outstanding principal balance of this Mezzanine Note, without
giving notice to or obtaining the consent of Mezzanine Borrower or its permitted
successors or assigns or any guarantors or indemnitor, and without liability on
the part of Mezzanine Lender, Mezzanine Lender may, at its option, extend the
time for payment of the outstanding principal balance of this Mezzanine Note or
any part thereof, reduce the payments thereon, release anyone liable for payment
of all or a portion of said indebtedness, accept a renewal of this Mezzanine
Note, modify the terms and time of payment of said outstanding principal
balance, join in any extension or subordination agreement, release any security
given herefor, take or release other or additional security, and agree in
writing with the undersigned to modify the rate of interest or period of
amortization of this Mezzanine Note or change the amount of the monthly
installments payable hereunder.
Presentment, notice of dishonor, and protest are hereby waived by
Mezzanine Borrower and all makers, sureties, guarantors and endorsers hereof.
This Mezzanine Note shall be binding upon Mezzanine Borrower and its successors
and assigns.
MEZZANINE BORROWER AND MEZZANINE LENDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A
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TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONJUNCTION WITH THIS MEZZANINE NOTE, THE PLEDGE AGREEMENT, ANY
OTHER MEZZANINE LOAN DOCUMENT, ANY OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED
IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
ASSIGNMENT AND TRANSFER OF MEZZANINE NOTE. Mezzanine Lender shall have the
right to assign or transfer, in whole or in part (including the right to grant
participation interests in) any or all of its obligations under this Mezzanine
Note, the Mezzanine Loan Agreement, the Pledge Agreement and any or all of the
other Mezzanine Loan Documents, subject to the terms of the Mezzanine Loan
Agreement. Mezzanine Lender shall be released of any obligations accruing after
the date of such assignment or transfer to the extent that the same are so
assigned or transferred, and the rights and obligations of "MEZZANINE LENDER"
hereunder shall become the rights and obligations of the transferee holder.
Mezzanine Lender agrees to provide Mezzanine Borrower with notice of any such
assignment; provided, however, that no Mezzanine Borrower's consent shall be
required in connection with any such assignment and no failure or delay by
Mezzanine Lender in delivering such notice shall limit the effectiveness of such
assignment.
LIMITATION ON RECOURSE. The obligations of Mezzanine Borrower hereunder
are subject to limitations on recourse as provided in Article XII of the
Mezzanine Loan Agreement.
ATTORNEYS' FEES, COSTS OF COLLECTION. Mezzanine Borrower shall pay to
Mezzanine Lender on demand all reasonable out-of-pocket costs and expenses,
including reasonable attorneys' fees and expenses, incurred by Mezzanine Lender
in collecting the indebtedness arising hereunder or under any other Mezzanine
Loan Documents or secured thereby or otherwise exercising any rights or remedies
of Mezzanine Lender hereunder or thereunder or at law or in equity or enforcing
the obligations of any parties hereto or thereto, or as a consequence of any
breach or default by Mezzanine Borrower or any guarantor hereunder or
thereunder, or otherwise as a consequence of any right evidenced or secured by
this Mezzanine Note or the Mezzanine Loan Documents. Without limitation, such
costs and expenses to be reimbursed by Mezzanine Borrower shall include
reasonable attorneys' fees and expenses incurred in any bankruptcy case or
proceeding and in any appeal.
APPLICABLE LAW. This Mezzanine Note 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.
TIME OF ESSENCE. Subject to the terms of the Mezzanine Loan Agreement,
time shall be of the essence as to all of the terms, covenants and conditions of
this Mezzanine Note. If the due date of any payment due hereunder or under any
of the other Mezzanine Loan Documents shall fall on a day other than a Business
Day, Mezzanine Borrower shall be required to make such payment on the next
succeeding Business Day.
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IN WITNESS WHEREOF, the undersigned Mezzanine Borrower have executed this
Mezzanine Note as of the date first written above.
MEZZANINE BORROWER:
LODGIAN MEZZANINE FLOATING, LLC,
a Delaware limited liability company
By:____________________________________
Name: Daniel E. Ellis
Title: Vice President and Secretary