EXHIBIT 10.1.8
COOPERATION AGREEMENT
THIS COOPERATION AGREEMENT (this "AGREEMENT") is made as of
the 25th day of June, 2004, by and between the Mortgage Borrowers listed on the
signature page hereof (collectively, the "MORTGAGE BORROWERS"), LODGIAN
MEZZANINE FLOATING, LLC (the "MEZZANINE BORROWER"), and MERRILL LYNCH MORTGAGE
LENDING, INC., in its capacity as both mortgage lender and mezzanine lender
("LENDER").
RECITALS:
A. The Mortgage Borrowers, by those certain Promissory
Notes of even date herewith given to Lender (the "MORTGAGE NOTE"), are indebted
to Lender in the original principal sum of One Hundred Ten Million and No/100
Dollars ($110,000,000.00) (the "MORTGAGE LOAN") as governed by that certain Loan
and Security Agreement of even date herewith between the Mortgage Borrowers and
Lender (together with all extensions, renewals, modifications, substitutions and
amendments thereof, the "MORTGAGE LOAN AGREEMENT").
B. The Mezzanine Borrower, by that certain Mezzanine
Note of even date herewith given to Lender (the "MEZZANINE NOTE"), is indebted
to Lender in the aggregate principal sum of One Hundred and No/100 Dollars
$100.00 (the "MEZZANINE LOAN") as governed by that certain Mezzanine Loan
Agreement of even date herewith between the Mezzanine Borrower and Lender
(together with all extensions, renewals, modifications, substitutions and
amendments thereof, the "MEZZANINE LOAN AGREEMENT").
C. Lender has required as a condition to making the
Mortgage Loan and the Mezzanine Loan that the Mortgage Borrowers and the
Mezzanine Borrower enter into this Agreement with Lender.
AGREEMENT
For ten ($10) dollars and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. Adjustment of Mortgage Loan and Mezzanine Loan/Loan
Modification. Lender shall have the right in its sole discretion, at any time
prior to the final Securitization of the Mortgage Loan, to separately adjust the
principal amount and applicable interest rates of the Mortgage Loan and the
Mezzanine Loan (each, a "LOAN MODIFICATION") provided that: (i) the aggregate
principal amount of the Mortgage Loan and the Mezzanine Loan immediately after
such adjustment shall equal the aggregate outstanding principal balance of the
Mortgage Loan and the Mezzanine Loan immediately prior to such adjustment, (ii)
the weighted average spread used in calculating the interest rate of the
Mortgage Loan and the Mezzanine Loan immediately after such adjustment shall
equal the weighted average spread used in calculating the interest rate which
was applicable to the Mortgage Loan and the Mezzanine Loan immediately prior to
such adjustment, (iii) the aggregate debt service payments on the Mortgage Loan
and the Mezzanine Loan immediately after such adjustment shall equal the
aggregate debt service payments which were due under the Mortgage Loan and the
Mezzanine Loan immediately prior to such adjustment, and (iv) the other material
terms and provisions of each of the Mortgage Loan and the Mezzanine Loan shall
remain unchanged and none of the foregoing adjustments shall increase the
obligations or reduce the rights of the Mortgage Borrowers, the Mezzanine
Borrower or Guarantor in any material respect. Any Loan Modification shall be
subject to the following:
(a) If Lender elects to increase the principal amount of
the Mezzanine Loan, the Mezzanine Borrower shall contribute to the Mortgage
Borrowers such additional loan proceeds to be applied to repay, dollar for
dollar, the Mortgage Note (in an amount and as designated by Lender), and the
Lender under the Mortgage Note will accept such prepayment without penalty,
premium or additional costs to the Mortgage Borrowers (except as provided
herein). If Lender elects to increase the principal amount of the Mortgage Loan
and reduce the principal amount of the Mezzanine Loan, the Mortgage Borrowers
shall distribute to the Mezzanine Borrower such additional loan proceeds to be
applied to repay, dollar for dollar, the Mezzanine Note (in an amount and as
designated by Lender), and the Lender under the Mezzanine Note will accept such
prepayment without penalty, premium or additional costs to the Mezzanine
Borrower (except as provided herein);
(b) The Mortgage Borrowers and the Mezzanine Borrower
shall cooperate, and shall cause Guarantor and any Affiliates thereof (the
"LODGIAN PARTIES") to cooperate, with all reasonable requests of Lender in
connection with any Loan Modification including, without limitation (x)
execution and delivery of such documents as shall reasonably be required by
Lender in connection therewith (including amended and restated notes, amended
and restated loan agreements, replacement Mortgages, replacement Assignments of
Leases, and ratifications by Guarantor of any of its obligations under any
guaranties or indemnities provided under the Mortgage Loan or the Mezzanine
Loan), and (y) adjustment of each Cap (as such term is defined in the Mortgage
Loan Agreement and the Mezzanine Loan Agreement) such that, following adjustment
of the principal amount of the Mortgage Loan and the Mezzanine Loan pursuant to
the terms hereof, (i) the Cap delivered in connection with the Mortgage Loan
shall have a notional amount equal to the then outstanding principal balance of
the Mortgage Loan, and (ii) the Cap delivered (or, if none is required by Lender
at Closing, to be delivered) in connection with the Mezzanine Loan shall have a
notional amount equal to the then outstanding principal balance of the Mezzanine
Loan;
(c) The Mortgage Borrowers and the Mezzanine Borrower
hereby absolutely and irrevocably appoint Lender their true and lawful attorney
coupled with an interest, in their name and stead to make and execute all
documents necessary to effect the Loan Modification, provided, however, that
Lender shall not make or execute any such documents under such power until ten
(10) days after notice by Lender to Mortgage Borrowers and Mezzanine Borrower of
such intent to exercise its right under such power;
(d) At Lender's request, in connection with any Loan
Modification the Mortgage Borrowers and the Mezzanine Borrower shall deliver to
Lender, at the Mortgage Borrowers' and the Mezzanine Borrower's expense,
replacement opinion letters in form and substance similar to the opinion letters
delivered on the Closing Date addressed to any
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subsequent holders of the Mortgage Loan or the Mezzanine Loan or any interest
therein (including, without limitation, each trustee holding the Mortgage Loan
or the Mezzanine Loan) with respect to any opinion letter delivered in
connection with the Mortgage Loan and the Mezzanine Loan;
(e) Lender shall pay all reasonable out-of-pocket costs
and expenses incurred by the Mortgage Borrowers and the Mezzanine Borrower in
connection with a Loan Modification (other than the Mortgage Borrowers',
Mezzanine Borrower's and Guarantor's internal costs and expenses, and the costs
and expenses of their respective counsel, mortgage recording fees and taxes,
required endorsements, if any, to the Title Policies (as such term is defined in
the Mortgage Loan Agreement and the Mezzanine Loan Agreement), and costs
incurred in adjusting each Cap).
Section 2. Capitalized Terms; Notices. Capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Mortgage Loan Agreement. Any notices, requests, demands or other communications
required or permitted hereunder shall be delivered as specified in the Mortgage
Loan Agreement and the Mezzanine Loan Agreement.
Section 3. Event of Default. It shall be an Event of Default
under the Mortgage Loan and the Mezzanine Loan if any of the Mortgage Borrowers,
the Mezzanine Borrower, or the Lodgian Parties fail to comply with any of the
terms, covenants or conditions of this Agreement within ten (10) Business Days
after receipt of written request from Lender.
Section 4. Governing Law. This Agreement shall be governed,
construed, applied and enforced in accordance with the laws of the State of New
York and the applicable laws of the United States of America.
Section 5. No Oral Change. This Agreement, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of the Mortgage
Borrowers, the Mezzanine Borrower, Guarantor, 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.
Section 6. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Mortgage Borrowers, the Mezzanine
Borrower, Guarantor, and Lender and their respective successors and assigns
forever.
Section 7. Inapplicable Provisions. If any term, covenant or
condition of this Agreement is held to be invalid, illegal or unenforceable in
any respect, this Agreement shall be construed without such provision.
Section 8. Headings, etc. The headings and captions of various
paragraphs of this Agreement are for convenience of reference only and are not
to be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
Section 9. Duplicate Originals, Counterparts. This Agreement
may be executed in any number of duplicate originals and each duplicate original
shall be deemed to be an original. This Agreement may be executed in several
counterparts, each of which
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counterparts shall be deemed an original instrument and all of which together
shall constitute a single Agreement. The failure of any party hereto to execute
this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
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IN WITNESS WHEREOF the undersigned have executed this
Cooperation Agreement as of the date and year first written above.
LENDER:
MERRILL LYNCH MORTGAGE
LENDING, INC.
By:/s/ Richard Spinna
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Name: Richard Spinna
Title: Vice President
[signatures continue on next page]
MEZZANINE BORROWER:
LODGIAN MEZZANINE FLOATING, LLC
By:/s/ Daniel E. Ellis
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Name: Daniel E. Ellis
Title: Vice President and Secretary
MORTGAGE BORROWERS:
APICO HILLS, INC.
BRUNSWICK MOTEL ENTERPRISES, INC.
DOTHAN HOSPITALITY 3053, INC.
DOTHAN HOSPITALITY 3071, INC.
GADSDEN HOSPITALITY, INC.
LODGIAN BRIDGEPORT LLC
LODGIAN COLCHESTER LLC
LODGIAN FLORENCE LLC
LODGIAN HAMBURG LLC
LODGIAN HOTELS FLOATING, LLC
LODGIAN JACKSON LLC
LODGIAN MEMPHIS LLC
LODGIAN MEMPHIS PROPERTY OWNER, LLC
LODGIAN MORGANTOWN LLC
SERVICO AUSTIN, INC.
SERVICO CEDAR RAPIDS, INC.
SERVICO GRAND ISLAND, INC.
SERVICO JAMESTOWN, INC.
SERVICO LANSING, INC.
SERVICO MARYLAND, INC.
SERVICO NEW YORK, INC.
SERVICO NIAGARA FALLS, INC.
SERVICO PENSACOLA 7200, INC.
SERVICO PENSACOLA 7330, INC.
SERVICO WINTER HAVEN, INC.
SHEFFIELD MOTEL ENTERPRISES, INC.
By:/s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary, or
Authorized Signatory for each of the
entities listed above
GUARANTOR:
LODGIAN, INC.
By:/s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Senior Vice President