EXHIBIT 10.4.6
FIRST AMENDMENT TO LOAN DOCUMENTS
Dated as of November, 11, 2003
Among
LODGIAN DENVER LLC, LODGIAN NORTH MIAMI LLC, LODGIAN COCONUT GROVE LLC, LODGIAN
AUGUSTA LLC, LODGIAN XXXXXXXX LLC, LODGIAN FORT XXXXXXXX LLC, LODGIAN
LAFAYETTE LLC, LODGIAN MERRIMACK LLC, LODGIAN HAMBURG LLC, LODGIAN SYRACUSE
LLC, LODGIAN CINCINNATI LLC, LODGIAN TULSA LLC, LODGIAN XXXXXXX LLC, LODGIAN
MEMPHIS LLC, LODGIAN COLCHESTER LLC, LODGIAN BRIDGEPORT LLC, LODGIAN
FAIRMONT LLC, AND LODGIAN MORGANTOWN LLC,
collectively, as Borrower
LODGIAN, INC.
as Guarantor
and
XXXXXX BROTHERS HOLDINGS INC.
as Lender
FIRST AMENDMENT TO LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN DOCUMENTS dated as of November 11, 2003,
(this "Amendment") among XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation,
having an address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender");
LODGIAN DENVER LLC, LODGIAN NORTH MIAMI LLC, LODGIAN COCONUT GROVE LLC, LODGIAN
AUGUSTA LLC, LODGIAN XXXXXXXX LLC, LODGIAN FORT XXXXXXXX LLC, LODGIAN LAFAYETTE
LLC, LODGIAN MERRIMACK LLC, LODGIAN HAMBURG LLC, LODGIAN SYRACUSE LLC, LODGIAN
CINCINNATI LLC, LODGIAN TULSA LLC, LODGIAN XXXXXXX LLC, LODGIAN MEMPHIS LLC,
LODGIAN COLCHESTER LLC, LODGIAN BRIDGEPORT LLC, LODGIAN FAIRMONT LLC, and
LODGIAN MORGANTOWN LLC, each a Delaware limited liability company, having its
principal place of business at c/o Lodgian, Inc., 0000 Xxxxxxxxx Xxxx, X.X. --
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (collectively, "Borrower"), and LODGIAN, INC.,
a Delaware limited liability company, having its principal place of business at
0000 Xxxxxxxxx Xxxx, X.X. -- Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Guarantor").
WITNESSETH:
WHEREAS, on May 22, 2003, Lender made a loan to Borrower in the
principal amount of $80,000,000.00 (the "Loan") which is, among other things:
(a) evidenced by a certain Consolidated, Amended and Restated Mortgage Note
dated May 22, 2003 made by Borrower in favor of Lender (the "Note") and governed
by a certain Loan Agreement dated as of May 22, 2003, between Borrower and
Lender (the "Loan Agreement"); (b) guarantied pursuant to a certain Principal's
Agreement dated as of May 22, 2003, by Guarantor in favor of Lender; and (c)
secured by, among other things, certain mortgages and deeds of trust each dated
as of May 22, 2003, by each of the individual entities that comprise Borrower in
favor of Lender (the "Security Instruments") and a certain Environmental
Indemnity Agreement dated as of May 22, 2003, by Guarantor and Borrower in favor
of Lender; and
WHEREAS, Lender, Borrower and Guarantor desire to amend the Loan
Agreement and the other Loan Documents (as defined in the Loan Agreement) to
which they are a party in the manner hereinafter provided.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
hereby agree that the Loan Agreement and the Loan Documents are hereby amended
as follows:
1. All capitalized terms not otherwise defined herein shall have
the meanings provided in the Loan Agreement.
2. Borrower, Guarantor and Lender, in each of their respective
capacities under the Loan Documents, hereby amend each of the Loan Documents as
of the date hereof to provide that each reference in any Loan Document to the
Loan Agreement shall be a reference to the Loan Agreement as amended hereby and
as the Loan Agreement may hereafter be further amended or restated, replaced,
supplemented or otherwise modified from time to time, and each such Loan
Document is so amended.
3. Section 1 of the Loan Agreement is hereby amended in the
following respects, effective from and after the date hereof:
(a) The definition of "Sale Properties" is hereby amended in its
entirety to read as follows:
"Sale Properties" means, collectively, (i) Mayfair House, 0000
Xxxxxxx Xxx., Xxxxx, XX 00000, (ii) Holiday Inn N. Miami,
00000 Xxxxxxxx Xxxx., Xxxxx, XX 00000, (iii) Holiday Inn, 0000
Xxxxxxxx Xxx., Xxxxxxxxxx, XX 00000 (iv) 000 Xxxx 0xx Xx.,
Xxxxxxxxxx, XX 00000, (v) Holiday Inn, 0000 Xxxxx Xxx., Xx.
Xxxxxxxx, XX 00000, (vi) Holiday Inn, 0000 Xxxxxxx Xxxxx,
Xxxxxxxx, XX 00000, (vii) Holiday Inn, 000 Xxxxxxx Xx.,
Xxxxxxxx, XX 00000, and (viii) Holiday Inn Sycamore, 0000
Xxxxxx Xxxx Xx., Xxxxxxx, XX 00000.
4. Each of Borrower and Guarantor hereby ratify, affirm,
reaffirm, confirm and acknowledge to Lender each of their respective
representations, warranties, covenants and agreements in the Loan Documents, as
amended hereby, as of the date hereof and after giving effect to the terms and
provisions of this Amendment.
5. Each of Borrower and Guarantor hereby represents and warrants
that there are no rights of set-off, offsets, claims, counterclaims, credits or
defenses to the payment or performance of its obligations under the Loan
Documents, as amended hereby, to which it is a party, and that as of the date
hereof no event has occurred which would constitute an Event of Default under
the Loan Documents, to which it is a party.
6. Each of Borrower and Guarantor hereby ratifies, affirms,
reaffirms, confirms, acknowledges and agrees that the Loan Documents, as amended
hereby, to which it is a party, represent the valid, enforceable and collectible
obligations of Borrower and Guarantor and confirms that the liens, security
interests, assignments and other rights evidenced by the Loan Documents, as
amended hereby, to which it is a party, continue uninterrupted from the date of
the Loan and shall continue uninterrupted under the Loan Documents. Each of
Borrower and Guarantor agrees that neither this Amendment nor the Loan Documents
constitute a novation of the Loan in any matter whatsoever.
7. Each of Borrower and Guarantor hereby waives, discharges and
releases forever any and all existing claims and defenses, personal or
otherwise, and rights of set-off that it may have against Lender or which might
affect the enforceability of Lender's rights and remedies under the Loan
Documents as amended hereby, to which it is a party.
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8. This Amendment is limited as specified and other than the
specific amendments contained herein shall not constitute an amendment,
modification or waiver of, or otherwise affect, in any way, any other provisions
of the Loan Documents as amended hereby, and they are ratified, affirmed,
reaffirmed and confirmed in all respects.
9. Each of Borrower and Guarantor agree to execute and deliver,
or cause to be executed and delivered, to Lender, at the sole cost and expense
of Borrower, all additional documents, instruments and certificates reasonably
considered necessary by Lender to cause this Amendment, the Loan Documents or
any other document, instrument or certificate executed in connection therewith
to be, become or remain valid and effective in accordance with its terms or in
order to implement more fully the intent of this Amendment or such other
document, instrument or certificate.
10. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
11. If any term, covenant or condition of this Amendment is held
to be invalid, illegal or unenforceable in any respect, this Amendment shall be
construed without such provision.
12. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO
PURSUANT TO THE LAWS OF THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE
GOVERNED, CONSTRUED, APPLIED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF SUCH
JURISDICTION.
13. Each of Borrower and Guarantor hereby declares and
acknowledges that it hereby receives, without charge, a true copy of this
Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized representatives, all as of the day and
year first above written.
LENDER:
XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
BORROWER:
LODGIAN DENVER LLC
LODGIAN NORTH MIAMI LLC
LODGIAN COCONUT GROVE LLC
LODGIAN AUGUSTA LLC
LODGIAN XXXXXXXX LLC
LODGIAN FORT XXXXXXXX LLC
LODGIAN LAFAYETTE LLC
LODGIAN MERRIMACK LLC
LODGIAN HAMBURG LLC
LODGIAN SYRACUSE LLC
LODGIAN CINCINNATI LLC
LODGIAN TULSA LLC
LODGIAN XXXXXXX LLC
LODGIAN MEMPHIS LLC
LODGIAN COLCHESTER LLC
LODGIAN BRIDGEPORT LLC
LODGIAN FAIRMONT LLC
LODGIAN MORGANTOWN LLC,
each a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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GUARANTOR:
LODGIAN, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
General Counsel
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XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the 4th day of November in the year 2003, before me, the
undersigned, personally appeared Xxxx Xxxxxxx, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, that by his/h signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument, and that such individual made such appearance before the
undersigned in the State of New York, County of New York.
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------
Notary Public
XXXXXXXX XXXXXXXX
Notary Public, State of New York
Certificate Filed in New York County
Commission Expires 9/18/06
#01 CA 6047908
(Notarial Seal)
STATE OF GEORGIA )
: ss.:
COUNTY OF XXXXXX )
On the 19th day of September in the year 2003, before me, the
undersigned, personally appeared Xxxxxx X. Xxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the State of Georgia County of Xxxxxx.
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Notary Public
NOTARY PUBLIC, ROCKDALE COUNTY, GEORGIA
My Commission Expires November 7, 2005
(Notarial Seal)
STATE OF GEORGIA )
: ss.:
COUNTY OF XXXXXX )
On the 19th day of September in the year 2003, before me, the
undersigned, personally appeared Xxxxxx X. Xxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the State of Georgia County of Xxxxxx.
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Notary Public
NOTARY PUBLIC, ROCKDALE COUNTY, GEORGIA
My Commission Expires November 7, 2005
(Notarial Seal)
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