EXHIBIT 10.28
FORM OF CROSS-GUARANTY
THIS CROSS-GUARANTY (this "Agreement" or "Guaranty"), made as of
June ___, 2004, from the parties listed as Guarantors on the signature pages
hereto (collectively, the "Guarantors"), each having an address at c/o Lodgian,
0000 Xxxxxxxxx Xxxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 to XXXXXXX XXXXX
MORTGAGE LENDING, INC., a Delaware corporation, having an office at Four World
Financial Center, 16th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(together with its successors and assigns, "Lender").
WITNESSETH:
WHEREAS, Lender has agreed to make three (3) loans (respectively,
the "Pool 2 Loan," "Pool 3 Loan," and "Pool 4 Loan," and collectively, the
"Loans") to the respective borrowers described on Exhibit A (respectively, the
"Pool 2 Borrowers," "Pool 3 Borrowers," and "Pool 4 Borrowers," and
collectively, the "Borrowers"), in the amounts set forth on Exhibit A; and
WHEREAS, to evidence the respective Loans, the respective Borrowers
have executed and delivered those certain Promissory Notes, each dated as of the
date hereof, in the principal amounts of the respective Loans (respectively,
"Note 2," "Note 3" and "Note 4," and collectively, the "Notes"), pursuant to
those certain Loan and Security Agreements, each dated as of the date hereof,
among the respective Borrowers and Lender as more particularly described on
Exhibit A (respectively, "Loan Agreement 2," "Loan Agreement 3" and "Loan
Agreement 4," and collectively, the "Loan Agreements"); and
WHEREAS, capitalized terms used but not otherwise defined herein
shall have the respective meanings given thereto in the respective Loan
Agreements or Guarantor Loan Agreement (hereinafter defined), as applicable; and
WHEREAS, the Notes shall be secured by, among other things, the
Mortgages encumbering the Properties; and
WHEREAS, simultaneously with the making of the Loans, Guarantors are
obtaining a loan in the amount of $63,801,000 (the "Guarantor Loan") from Lender
pursuant to that certain Loan and Security Agreement, dated as of the date
hereof, by and between the Guarantors and Lender (the "Guarantor Loan
Agreement"; and together with the other documents and agreements evidencing
and/or securing the Guarantor Loan, collectively, the "Guarantor Loan
Documents"); and
WHEREAS, it is a condition precedent to Lender making the Guarantor
Loan to Guarantors that Guarantors, among other things, guaranty the Loans
pursuant to this Guaranty and grant to Lender Mortgages on the Properties (as
defined in the Guarantor Loan Agreement, and hereinafter referred to as the
"Guarantor Properties") as security for their obligations hereunder; and
WHEREAS, Guarantors shall derive substantial economic benefits from
the simultaneous making of the Guarantor Loan and Loans by Lender to Guarantors
and Borrowers, respectively; and
WHEREAS, as a condition precedent to the making of the Loans,
Borrowers have agreed to procure and deliver to Lender this Agreement; and
WHEREAS, Lender has declined to make the Loans or the Guarantor Loan
unless this Agreement is duly executed by Guarantors and delivered to Lender.
NOW, THEREFORE, in consideration for, and as an inducement to,
Lender's making the Loans and the Guarantor Loan, and for other good and
valuable consideration the legal sufficiency of which and receipt thereof are
hereby acknowledged, and notwithstanding any provision to the contrary contained
in the Guarantor Loan Agreement, the Guarantor Loan Documents, the Loan
Agreements, the Notes, the Mortgages or any of the other Loan Documents, but
subject to the provisions of Article XII of the Guarantor Loan Agreement, Lender
and Guarantors do hereby agree as follows:
1. Guarantors, on behalf of themselves and their successors and
assigns (collectively, "Successors") do hereby absolutely, unconditionally,
irrevocably and personally: (i) guaranty to Lender the full and prompt payment
and performance when due of the Loans and all other Obligations of the Borrowers
under the Loan Agreements and (ii) agree to reimburse Lender for, and hold
Lender harmless from and against, any and all losses, damages, claims, expenses,
deficiencies, liabilities and costs (including, without limitation, reasonable
attorneys' fees and disbursements) incurred, suffered or sustained by Lender
and/or its successors and assigns as a result of or arising out of, in
connection with or resulting from, the enforcement of this Agreement against
Guarantors (the obligations of Guarantors under clauses (i) and (ii) above being
referred to hereinafter, collectively, as "Guarantors' Obligations").
Notwithstanding the foregoing, or anything else to the contrary
contained herein, in the event that any of the Guarantors shall become an
Excluded Borrower and the Guarantor Loan shall become an Excluded Loan pursuant
to Lender's election under Section 2.12(G) of the Guarantor Loan Agreement to
cause any of the Loans to no longer be secured by the Guarantor Properties, this
Guaranty shall automatically terminate and shall be of no further force or
effect.
2. It is agreed that the obligations of Guarantors hereunder shall
be primary and this Agreement shall be enforceable against Guarantors and their
Successors without the necessity for any suit or proceeding of any kind or
nature whatsoever brought by Lender against Borrowers or their respective
successors or assigns or any other party or against any security for the payment
of the Guarantors' Obligations and without the necessity of any notice of
non-payment or non-observance or of any notice of acceptance of this Agreement
or of any notice of demand to which Guarantors might otherwise be entitled
(including, without limitation, diligence, presentment, notice of maturity,
extension of time, protest, notice of dishonor or default, change in nature or
form of the Guarantors' Obligations, acceptance of further security, release of
further security, imposition or agreement arrived at as to the amount of or the
terms of the Guarantors' Obligations, notice of adverse change in Borrowers'
financial condition and any other fact that might materially increase the risk
to Guarantors), all of which Guarantors hereby expressly waive. Guarantors
hereby expressly agree that the validity of this Agreement and the obligations
of Guarantors hereunder shall in no way be terminated, affected, diminished,
modified or impaired by reason of the assertion of or the failure to assert by
Lender against Borrowers, or their successors or assigns, any of the rights or
remedies reserved to Lender pursuant to the provisions of the Guarantor Loan
Agreement, the Loan Agreements, the Notes, the Mortgages or any other Loan
Documents.
3. Guarantors waive, and covenant and agree that they will not at
any time insist upon, plead or in any manner whatsoever claim or take the
benefit or advantage of, any and all appraisal, valuation, stay, extension,
marshaling-of-assets or redemption laws, or right of homestead or exemption,
whether now or at any time hereafter in force, that may delay, prevent or
otherwise affect the performance by Guarantors of their obligations under, or
the enforcement by Lender of, this Agreement. Guarantors further covenant and
agree not to set up or claim any defense, counterclaim, cross-claim, offset,
set-off, right of recoupment, or other objection of any kind to any action, suit
or proceeding in law, equity or otherwise, or to any demand or claim that may be
instituted or made by Lender hereunder other than the
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defense of the actual timely performance of Guarantors' Obligations hereunder.
Guarantors represent, warrant and agree that, as of the date hereof, their
obligations under this Agreement are not subject to any counterclaims,
cross-claims, rights of recoupment, offsets or affirmative or other defenses of
any kind against Lender.
4. Guarantors agree that any notice or directive given at any time
by Guarantors to Lender that is inconsistent with any waiver contained in this
Agreement shall be void and may be ignored by Lender, and, in addition, may not
be pleaded or introduced as evidence in any litigation relating to this
Agreement for the reason that such pleading or introduction would be at variance
with the written terms of this Agreement, unless Lender has specifically agreed
otherwise in a writing, signed by a duly authorized officer. Guarantors
specifically acknowledge and agree that the foregoing waivers are of the essence
of the Loan transaction and that, but for this Agreement and such waivers,
Lender would not make the Loans to Borrowers.
5. The provisions of this Agreement are for the benefit of Lender
and its successors and assigns, and nothing herein contained shall impair, as
between Borrowers and Lender, the obligations of Borrowers under the Loan
Agreements, the Notes, the Mortgages or any of the other Loan Documents.
6. This Agreement shall be a continuing guaranty and the liability
of Guarantors hereunder shall in no way be terminated, affected, modified,
impaired or diminished (to the extent permitted by law) by reason of the
happening, from time to time, of any of the following, although without notice
or the further consent of Guarantors:
(a) any assignment, amendment, modification or waiver of or change
in any of the terms, covenants, conditions or provisions of the Guarantor
Loan Agreement, the Loan Agreements, the Notes, the Mortgages or any of
the other Loan Documents or the invalidity or unenforceability of any of
the foregoing; or
(b) any extension of time that may be granted by Lender to
Borrowers, Guarantors or Guarantors' Successors; or
(c) any action that Lender or Borrowers may take or fail to take
under or in respect of any of the Loan Documents or by reason of any
waiver of, or failure to enforce any of the rights, remedies, powers or
privileges available to Lender under this Agreement or available to Lender
at law, equity or otherwise, or any action on the part of Lender or
Borrowers granting indulgence or extension in any form whatsoever; or
(d) any dealing, transaction, matter or thing occurring between
Lender, Borrowers, Guarantors or Guarantors' Successors; or
(e) any sale, exchange, release, or other disposition of any
property pledged, Mortgaged or conveyed, or any property in which Lender
has been granted a lien or security interest to secure any indebtedness of
Borrowers to Lender; or
(f) any release of any person or entity who may be liable in any
manner for the payment and collection of any amounts owed by Borrowers to
Lender (including the other Guarantors); or
(g) the application of any sums by whomsoever paid or however
realized to any amounts owing by Borrowers to Lender in such manner as
Lender shall determine in its sole discretion; or
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(h) any Event of Default (as such term is defined in the Guarantor
Loan Agreement and the Loan Agreements), whether or not Lender has
exercised any of its rights and remedies as set forth in the Guarantor
Loan Agreement or the Mortgages upon the happening of any such Event of
Default; or
(i) Borrowers' and/or Guarantors' voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of Borrowers'
or Guarantors' assets, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment, or
the commencement of other similar proceedings affecting Borrowers or
Guarantors or any of the assets of either of them, including, without
limitation, (A) the release or discharge of Borrowers from the payment and
performance of their obligations under any of the Loan Documents by
operation of law, or (B) the impairment, limitation or modification of the
liability of Borrowers, their partners or Guarantors in bankruptcy, or of
any remedy for the enforcement of the Guarantors' Obligations, under any
of the Loan Documents, or Guarantors' liability under this Agreement,
resulting from the operation of any present or future provisions of the
Federal Bankruptcy Code or other present or future federal, state or
applicable statute of law or from the decision in any court; or
(j) any change in or termination of the ownership interest of
Guarantors in Borrowers (whether direct or indirect); or
(k) any conveyance of the Mortgaged Properties, whether or not
pursuant to a foreclosure sale, a deed in lieu of foreclosure, a transfer
through bankruptcy, or otherwise.
7. Guarantors acknowledge that this Guaranty and Guarantors'
Obligations are and shall at all times continue to be absolute, unconditional
and irrevocable in all respects, and shall at all times be valid and enforceable
irrespective of any other agreement or circumstances of any nature whatsoever
that might otherwise constitute a defense to this Guaranty or the obligations of
any other person or party (including, without limitation, Borrower or any other
guarantor) relating to this Guaranty or the obligations of Guarantors hereunder.
8. Guarantors agree that if at any time all or any part of any
payment at any time received by Lender from Borrowers or Guarantors under or
with respect to this Agreement is or must be rescinded or returned by Lender for
any reason whatsoever (including, without limitation, the insolvency, bankruptcy
or reorganization of Borrowers or Guarantors), then Guarantors' Obligations
hereunder shall, to the extent of the payment rescinded or returned, be deemed
to have continued in existence notwithstanding such previous receipt by Lender,
and Guarantors' Obligations hereunder shall continue to be effective or
reinstated, as the case may be, as to such payment, as though such previous
payment to Lender had never been made.
9. Until repayment of the Indebtedness (as such term is defined in
the Guarantor Loan Agreement and the Loan Agreements) and satisfaction of all of
the obligations under the Guarantor Loan Agreement, Guarantors and each of them
(a) shall have no right of subrogation against Borrowers, general partner of any
Borrower that is a limited partnership or any other Guarantor by reason of any
payments or acts of performance by a Guarantor in compliance with the
obligations of a Guarantor hereunder; (b) shall have no right of indemnity,
contribution, or any other right or cause of action whatsoever under law or
equity against any other Guarantor by reason of any payments or acts of
performance by a Guarantor in compliance with the obligations of a Guarantor
hereunder; (c) hereby waive any right to enforce any remedy that any Guarantors
now or hereafter shall have against Borrowers, general partner of any Borrower
that is a limited partnership or any other Guarantor by reason of any one
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or more payments or acts of performance in compliance with the obligations of a
Guarantor hereunder; (d) shall subordinate any liability or indebtedness of
Borrowers, general partner of any Borrower that is a limited partnership or any
Guarantor now or hereafter held by any Guarantor or any affiliate of a Guarantor
to the obligations of Borrowers, general partner of any Borrower that is a
limited partnership or Guarantor to Lender under the Loan Documents; and (e)
shall not file, assert or receive payment on any claim, whether now existing or
hereafter arising, against Borrowers, general partner of any Borrower that is a
limited partnership or any Guarantor in the event of the commencement of a case
by or against Borrowers, general partner of any Borrower that is a limited
partnership or any Guarantor under federal or state insolvency laws.
10. Guarantors represent and warrant to Lender, with the knowledge
that Lender is relying upon the same, as follows:
(a) Guarantors are solvent and have the legal right to enter into
this Agreement and to perform their obligations under the terms hereof;
(b) to the best of Guarantors' knowledge, there is no action, suit,
proceeding or investigation pending or threatened against or affecting
Guarantors at law, in equity, in admiralty or before any arbitrator or any
governmental department, commission, board, bureau, agency or
instrumentality (domestic or foreign) that is likely to result in any
material adverse change in the property, assets or condition (financial or
otherwise) of Guarantors or that is likely to impair materially the
ability of Guarantors to perform their obligations under this Agreement;
and
(c) all financial statements that have heretofore been furnished by
Guarantors to Lender in connection with this Agreement, are true, correct
and complete; and fairly present the financial condition of Guarantors,
all as of the respective dates thereof.
11. Guarantors and Lender acknowledge and agree that this Agreement
is a guaranty of payment and performance and not of collection and enforcement
in respect of any of the Guarantors' Obligations.
12. Lender may freely assign any or all of its rights under this
Agreement, but any such assignment shall be made only to the subsequent holder
of any of the Notes and no such assignment shall increase Guarantors'
Obligations or diminish its rights hereunder. In the event of any such
assignment, the consent of Guarantors shall not be required for any such
assignment and failure to give notice of such assignment shall not affect the
validity or enforceability of any such assignment or subject Lender to any
liability and Guarantors shall continue to remain bound by and obligated to
perform under and with respect to this Agreement. Guarantors shall not assign
any of their obligations under this Agreement without the prior consent of the
Lender.
13. The representations, warranties and obligations of Guarantor set
forth in this Agreement shall survive until this Agreement shall terminate in
accordance with the terms hereof.
14. This Agreement contains the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements relating to such subject matter and may not be modified, amended,
supplemented or discharged except by a written agreement signed by Guarantors
and Lender. This Agreement also may be discharged by full performance of the
Guarantors' Obligations in accordance with the terms hereof, or as otherwise
provided herein.
15. If all or any portion of any provision contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, such provision or portion
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thereof shall be deemed stricken and severed from this Agreement and the
remaining provision and portions thereof shall continue in full force and
effect.
16. All notices, requests, demands and other communications under or
in connection with this Agreement shall be in writing and shall be deemed to
have been given or made (i) three (3) days after the date such notice is mailed,
(ii) on the next Business Day if sent by a nationally recognized overnight
courier service, (iii) on the date of delivery by personal delivery and (iv) on
the date of transmission if sent by telefax during business hours on a Business
Day (otherwise the next Business Day). Notices shall be addressed as follows:
If to Guarantors: The address listed above
With a copy to: Xxxxxx Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xx., XX
0000 Xxxxxxx Financial Center
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Lender: The address listed above
With a copy to: Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
The above addresses may be changed on written notice given as
hereinabove provided. Notices may be sent by a party hereto or on its behalf by
its attorney.
17. This Agreement shall be binding upon Guarantors and their
Successors and shall inure to the benefit of Lender and its successors and
assigns.
18. The failure of Lender to enforce any right or remedy hereunder,
or promptly to enforce any such right or remedy, shall not constitute a waiver
thereof, nor give rise to any estoppel against Lender, nor excuse Guarantors
from their obligations hereunder. Any waiver of any such right or remedy to be
enforceable against Lender must be expressly set forth in writing signed by
Lender.
19. (a) Any suit initiated by Lender against Guarantors or in
connection with or arising, directly or indirectly, out of or relating to,
this Agreement (an "Action") may, at Lender's option, be brought in any
state or federal court in the State of New York, or any state or federal
court in which the property is located, having jurisdiction over the
subject matter hereof. Guarantors hereby submit themselves to the
jurisdiction of any such court and agree that service of process against
Guarantors in any such action may be effected by any means permissible
under federal law or under the laws of the state in which such Action is
brought. Guarantors hereby agree that insofar as is permitted under
applicable law, this consent to personal jurisdiction shall be
self-operative and no further instrument or action, other than service of
process in one of the manners specified in this Guaranty, or as otherwise
permitted by law, shall be necessary in order to confer jurisdiction upon
Guarantors.
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(b)Guarantors agree that, provided that service of process is
effected upon Guarantors in any manner permitted by law, Guarantors
irrevocably waive, to the fullest extent permitted by law, and agree not
to assert, by way of motion, as a defense or otherwise, (i) any objection
that Guarantors may have or may hereafter have to the laying of the venue
of any Action brought in any court as provided for by this Agreement, (ii)
any claim that any Action brought in any such court has been brought in an
inconvenient forum, or (iii) any claim that Guarantors are not personally
subject to the jurisdiction of such court. Guarantors agree that, provided
that service of process is effected upon Guarantors in one of the manners
specified in this Guaranty or as otherwise permitted by law, a final
judgment from which Guarantors have not appealed or may not appeal in any
Action brought in any such court shall be conclusive and binding upon
Guarantors and may, so far as permitted under applicable law, be enforced
in the courts of any state or any federal court or in any other courts to
the jurisdiction of which it is subject, by a suit upon such judgment and
that Guarantors shall not assert any defense, counterclaim or set-off in
any such suit upon such judgment.
(c)To the extent that Guarantors have or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment before judgment, attachment in aid
of execution, execution or otherwise) with respect to Guarantors or
Guarantors' property, Guarantors hereby irrevocably waive such immunity in
respect of its obligations under this Agreement.
(d)As a further inducement to Lender's making of the Loans to
Borrowers, and in consideration thereof, Lender and Guarantors each
covenant and agree that in any action or proceeding brought on, under or
by virtue of this Agreement, Lender and Guarantors each shall and do
hereby unconditionally and irrevocably waive trial by jury.
(e)Guarantors hereby further covenant and agree to and with Lender
that Guarantors may be joined in any action against Borrowers in
connection with the Guarantor Loan Agreement, the Loan Agreements, the
Notes, the Mortgages, or any of the other Loan Documents, solely with
respect to the subject matter of this Agreement.
(f)Guarantors covenant and agree to indemnify and save Lender
harmless of and from, and defend it against, all losses, costs,
liabilities, expenses, damages or claims suffered by reason of Guarantors'
failure to perform its obligations hereunder.
20. All of Lender's rights and remedies under the Guarantor Loan
Agreement, the Loan Agreements, the Notes, the Mortgages or any of the other
Loan Documents or under this Agreement are intended to be distinct, separate and
cumulative and no such right or remedy therein or herein mentioned is intended
to be in exclusion of or a waiver of any other right or remedy available to
Lender.
21. Guarantors hereby consent that from time to time, before or
after any default by Borrower, with or without further notice to or assent from
Guarantors, any security at any time held by or available to Lender for any
obligation of Borrowers, or any security at any time held by or available to
Lender for any obligation of any other person or party secondarily or otherwise
liable for all or any portion of the Loans, may be exchanged, surrendered or
released and any obligation of Borrowers, or of any such other person or party,
may be changed, altered, renewed, extended, continued, surrendered, compromised,
waived or released in whole or in part, or any default with respect thereto
waived, and Lender may fail to set off and may release, in whole or in part, any
balance of any deposit account or credit on its books in favor of Borrowers, or
of any such other person or party, and may extend further credit in any manner
whatsoever to Borrowers, and generally deal with Borrowers or any such security
or other person or party as Lender may see fit; and Guarantors shall remain
bound under this Agreement
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notwithstanding any such exchange, surrender, release, change, alteration,
renewal, extension, continuance, compromise, waiver, action, inaction, extension
of further credit or other dealing. This Agreement is independent of, and in
addition to, all collateral granted, pledged or assigned under the Loan
Documents.
22. The terms of this Agreement have been negotiated, and this
Agreement has been executed and delivered in the State of New York, and it is
the intention of the parties hereto that this Agreement be construed and
enforced in accordance with the laws of such State.
23. This Agreement may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
24. This Agreement may be executed in counterparts, which together
shall constitute the same instrument.
25. All representations, warranties, covenants (both affirmative and
negative) and all other obligations under this Guaranty shall be the joint and
several obligation of each of the Guarantors and any default under this Guaranty
by any Guarantor shall be deemed a default by all such Guarantors.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this
Agreement as of the date and year first above written.
GUARANTORS:
IMPAC HOTELS I, L.L.C.
LODGIAN DENVER LLC
LODGIAN HOTELS FIXED I, LLC
MACON HOTEL ASSOCIATES, L.L.C.
SERVICO NORTHWOODS, INC.
By: _________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President and
Secretary, or Authorized
Signatory for each of the
entities listed above
EXHIBIT A
1. Pool 2 Loan: Pursuant to a Loan and Security Agreement, dated as of
the date hereof ("Loan Agreement 2"), between Albany Hotel, Inc.,
AMI Operating Partners, L.P., Apico Inns of GreenTree, Inc., Dedham
Lodging Associates I, Limited Partnership, Lodgian Hotels Fixed II,
Inc., Lodgian Augusta LLC, Lodgian Lafayette LLC and Lodgian Tulsa
LLC (collectively, the "Pool 2 Borrowers") and Lender, Lender has
made a loan in the amount of $67,864,000 ("Pool 2 Loan"), which Loan
is evidenced by a Promissory Note dated as of the date hereof ("Note
2"), made by the Pool 2 Borrowers to Lender;
2. Pool 3 Loan: Pursuant to a Loan and Security Agreement, dated as of
the date hereof ("Loan Agreement 3"), between Lodgian Hotels Fixed
III, LLC, Lodgian AMI, Inc., Minneapolis Motel Enterprises, Inc. and
Servico Centre Associates, Ltd. (collectively, the "Pool 3
Borrowers") and Lender, Lender has made a loan in the amount of
$66,818,500 ("Pool 3 Loan"), which Loan is evidenced by a Promissory
Note, dated as of the date hereof ("Note 3"), made by the Pool 3
Borrowers to Lender; and
3. Pool 4 Loan: Pursuant to a Loan and Security Agreement, dated as of
the date hereof ("Loan Agreement 4"), between Lodgian Hotels Fixed
IV, L.P., Little Rock Lodging Associates I, Limited Partnership,
Lodgian Fairmont LLC, NH Motel Enterprises, Inc., Servico Columbia,
Inc. and Servico Houston, Inc. (collectively, the "Pool 4
Borrowers") and Lender, Lender has made a loan in the amount of
$61,516,400 ("Pool 4 Loan") which Loan is evidenced by a Promissory
Note, dated as of the date hereof ("Note 4"), made by the Pool 4
Borrowers to Lender.
