LODGIAN INC
EX-10.2.3 GUARANTY OF RECOURSE OBLIGATIONS
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<TYPE>EX-10.2.3
<SEQUENCE>16
<FILENAME>g90366exv10w2w3.txt
<DESCRIPTION>EX-10.2.3 GUARANTY OF RECOURSE OBLIGATIONS
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                                                                  EXHIBIT 10.2.3

                        GUARANTY OF RECOURSE OBLIGATIONS

            This GUARANTY OF RECOURSE OBLIGATIONS (this "GUARANTY"), dated as of
June 25, 2004, made by LODGIAN, INC., a Delaware corporation ("GUARANTOR"),
having an address at 3445 Peachtree Road, NE, Suite 700, Atlanta, Georgia 30326,
in favor of MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation, having
an office at Four World Financial Center, New York, New York 10080 (together
with its successors, transferees and assigns, "LENDER").

                                R E C I T A L S:

            A. Pursuant to that certain Loan and Security Agreement, dated as of
the date hereof (as the same may be amended, modified, supplemented or restated
from time to time, the "LOAN AGREEMENT"), among the Borrowers named therein
(each, a "BORROWER", and collectively, "BORROWERS"), and Lender, Lender has
agreed to make a loan to Borrowers in the aggregate original principal amount of
up to Sixty Three Million Eight Hundred and One Thousand and No/100
Dollars($63,801,000.00) (the "LOAN"), subject to the terms and conditions of the
Loan Agreement;

            B. As a condition to Lender's making the Loan, Lender is requiring
that Guarantor execute and deliver to Lender this Guaranty; and

            C. Guarantor hereby acknowledges that Guarantor holds a direct
and/or indirect ownership interest in each Borrower and that Guarantor will
materially benefit from Lender's agreeing to make the Loan.

            NOW, THEREFORE, in consideration of the premises set forth herein
and as an inducement for and in consideration of the agreement of Lender to make
the Loan pursuant to the Loan Agreement and the other Loan Documents, Guarantor
hereby agrees, covenants, represents and warrants to Lender as follows:

            SECTION 1. DEFINITIONS. All capitalized terms used and not defined
herein shall have the respective meanings given such terms in the Loan
Agreement.

            SECTION 2. GUARANTY.

            (a) Guarantor (but not its members, partners, employees,
shareholders, agents, directors or officers) hereby irrevocably, absolutely and
unconditionally assumes liability for, guarantees payment to Lender of, and
agrees to pay, protect, defend, indemnify and save harmless Lender from and
against any and all Guaranteed Recourse Obligations of Borrowers (as hereinafter
defined).

The obligations which are the subject of the guaranty referred to in this
Section 2 are hereinafter collectively referred to as the "GUARANTEED
OBLIGATIONS".



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            (b) The term "GUARANTEED RECOURSE OBLIGATIONS OF BORROWERS" as used
in this Guaranty shall mean all obligations and liabilities of Borrowers for
which Borrowers shall be personally liable under the provisions of Section 12.2
of the Loan Agreement.

            (c) All sums payable to Lender under this Guaranty shall be payable
on demand and without reduction for any offset, claim, counterclaim or defense.

            SECTION 3. REPRESENTATIONS AND WARRANTIES. Guarantor hereby
represents and warrants to Lender as follows (which representations and
warranties shall be given as of the date hereof and shall survive the execution
and delivery of this Guaranty):

            (a) DUE EXECUTION. This Guaranty has been duly executed and
delivered by Guarantor.

            (b) ENFORCEABILITY. This Guaranty constitutes a legal, valid and
binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally, or application of general principles
of equity in any legal proceeding.

            (c) NO VIOLATION. The execution, delivery and performance by
Guarantor of its obligations under this Guaranty do not violate any law,
regulation, order, writ, injunction or decree of any court or governmental body,
agency or other instrumentality applicable to Guarantor, or result in a breach
of any of the terms, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the assets of Guarantor
pursuant to the terms of any mortgage, indenture, agreement or instrument to
which Guarantor is a party or by which it or any of its properties is bound.
Guarantor is not in default under any other guaranty which it has provided to
Lender.

            (d) NO LITIGATION. Except as disclosed on Schedule 4.9 to the Loan
Agreement, there are no actions, suits or proceedings at law or at equity,
pending or, to Guarantor's knowledge, threatened against or affecting Guarantor
or which involve or could reasonably be expected to involve the validity or
enforceability of this Guaranty or which might materially adversely affect the
financial condition of Guarantor or the ability of Guarantor to perform any of
its obligations under this Guaranty. Guarantor is not in default beyond any
applicable grace or cure period with respect to any order, writ, injunction,
decree or demand of any Governmental Authority which might materially adversely
affect the financial condition of Guarantor or the ability of Guarantor to
perform any of its obligations under this Guaranty.

            (e) CONSENTS. All consents, approvals, orders or authorizations of,
or registrations, declarations or filings with, all Governmental Authorities
(collectively, the "CONSENTS") that are required in connection with the valid
execution, delivery and performance by Guarantor of this Guaranty have been
obtained and Guarantor agrees that all Consents required in connection with the
carrying out or performance of any of Guarantor's obligations under this
Guaranty will be obtained when required.

            (f) FINANCIAL STATEMENTS AND OTHER INFORMATION. All financial
statements of Guarantor heretofore delivered to Lender fairly present the
financial condition of Guarantor as of

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the respective dates thereof, and no materially adverse change has occurred in
the financial conditions reflected therein since the respective dates thereof.
None of the aforesaid financial statements or any certificate or statement
furnished to Lender by or on behalf of Guarantor in connection with the
transactions contemplated hereby, and none of the representations and warranties
in this Guaranty contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein not materially misleading. Guarantor is not insolvent within
the meaning of the Bankruptcy Code or any other applicable law, code or
regulation and the execution, delivery and performance of this Guaranty will not
render Guarantor insolvent.

            SECTION 4. FINANCIAL STATEMENTS. Guarantor hereby agrees for the
benefit of Lender that Guarantor will deliver to Lender each of the financial
statements required to be delivered pursuant to Section 5.1 of the Loan
Agreement.

            SECTION 5. INTENTIONALLY DELETED.

            SECTION 6. UNCONDITIONAL CHARACTER OF OBLIGATIONS OF GUARANTOR.

            (a) The obligations of Guarantor hereunder shall be irrevocable,
absolute and unconditional, irrespective of the validity, regularity or
enforceability, in whole or in part, of the Note, the Loan Agreement, the
Mortgages or the other Loan Documents or any provision thereof, or the absence
of any action to enforce the same, any waiver or consent with respect to any
provision thereof, the recovery of any judgment against any Borrower, Guarantor
or any other Person or any action to enforce the same, any failure or delay in
the enforcement of the obligations of Borrowers under the Note, the Loan
Agreement, the Mortgages or any other Loan Documents or Guarantor under this
Guaranty, or any setoff, counterclaim, and irrespective of any other
circumstances which might otherwise limit recourse against Guarantor by Lender
or constitute a legal or equitable discharge or defense of a guarantor or
surety. Lender may enforce the obligations of Guarantor under this Guaranty by a
proceeding at law, in equity or otherwise, independent of any loan foreclosure
or similar proceeding or any deficiency action against Borrowers or any other
Person at any time, either before or after an action against the Properties or
any of them or any part thereof, Borrowers or any other Person. THIS GUARANTY IS
A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION.
Guarantor waives diligence, notice of acceptance of this Guaranty, filing of
claims with any court, any proceeding to enforce any provision of the Note, the
Loan Agreement, the Mortgages or any other Loan Documents, against Guarantor,
Borrowers or any other Person, any right to require a proceeding first against
Borrowers or any other Person, or to exhaust any security (including, without
limitation, the Properties or any of them or any part thereof) for the
performance of the Guaranteed Obligations or any other obligations of Borrowers
or any other Person, or any protest, presentment, notice of default (except as
may be expressly required under the Loan Documents) or other notice or demand
whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not
be discharged of its obligations hereunder.

            (b) The obligations of Guarantor under this Guaranty, and the rights
of Lender to enforce the same by proceedings, whether by action at law, suit in
equity or otherwise, shall not be in any way affected by any of the following:

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                  (i) any insolvency, bankruptcy, liquidation, reorganization,
      readjustment, composition, dissolution, receivership, conservatorship,
      winding up or other similar proceeding involving or affecting any
      Borrower, any Property or any part thereof, Guarantor or any other Person;

                  (ii) any failure by Lender or any other Person, whether or not
      without fault on its part, to perform or comply with any of the terms of
      the Loan Agreement, or any other Loan Documents, or any document or
      instrument relating thereto;

                  (iii) except (A) with respect to activities occurring after
      the date of a Permitted Assumption or, (B) activities relating to a
      Released Property after the date of a Release with respect thereto, the
      sale, transfer or conveyance of any Property or any interest therein to
      any Person, whether now or hereafter having or acquiring an interest in
      any Property or any interest therein and whether or not pursuant to any
      foreclosure, trustee sale or similar proceeding against any Borrower or
      any Property or any interest therein;

                  (iv) the conveyance to Lender, any Affiliate of Lender or
      Lender's nominee of any Property or any interest therein by a deed-in-lieu
      of foreclosure;

                  (v) the release of any Borrower or any other Person from the
      performance or observance of any of the agreements, covenants, terms or
      conditions contained in any of the Loan Documents by operation of law or
      otherwise;

                  (vi) the release in whole or in part of any collateral for any
      or all Guaranteed Obligations or for the Loan or any portion thereof; or

                  (vii) the exercise by Mezzanine Lender of any remedies made
      available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan
      Documents, including, without limitation, foreclosure or similar remedies
      under any pledge agreement encumbering Mezzanine Borrower's interest in
      any General Partner, any Member, and/or any Borrower except with respect
      to actions taken by the Mezzanine Lender following the Mezzanine Lender
      succeeding to the interests of the Mezzanine Borrowers in and to the
      Borrowers.

            (c) Except as otherwise specifically provided in this Guaranty,
Guarantor hereby expressly and irrevocably waives all defenses in an action
brought by Lender to enforce this Guaranty based on claims of waiver, release,
surrender, alteration or compromise and all setoffs, reductions, or impairments,
whether arising hereunder or otherwise.

            (d) Lender may deal with Borrowers and Affiliates of Borrowers in
the same manner and as freely as if this Guaranty did not exist and shall be
entitled, among other things, to grant Borrowers or any other Person such
extension or extensions of time to perform any act or acts as may be deemed
advisable by Lender, at any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the obligations of
Guarantor hereunder.

            (e) No compromise, alteration, amendment, modification, extension,
renewal, release or other change of, or waiver, consent, delay, omission,
failure to act or other action with

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respect to, any liability or obligation under or with respect to, or of any of
the terms, covenants or conditions of, the Note, the Loan Agreement, the
Mortgages or the other Loan Documents or any amendment, modification or other
change of any legal requirement shall in any way alter, impair or affect any of
the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan
Documents are modified with Lender's consent, the Guaranteed Obligations shall
automatically be deemed modified to include such modifications.

            (f) Lender may proceed to protect and enforce any or all of its
rights under this Guaranty by suit in equity or action at law, whether for the
specific performance of any covenants or agreements contained in this Guaranty
or otherwise, or to take any action authorized or permitted under applicable
law, and shall be entitled to require and enforce the performance of all acts
and things required to be performed hereunder by Guarantor. Each and every
remedy of Lender shall, to the extent permitted by law, be cumulative and shall
be in addition to any other remedy given hereunder or now or hereafter existing
at law or in equity.

            (g) No waiver shall be deemed to have been made by Lender of any
rights hereunder unless the same shall be in writing and signed by Lender, and
any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of Lender or the obligations of
Guarantor to Lender in any other respect or at any other time.

            (h) At the option of Lender, Guarantor may be joined in any action
or proceeding commenced by Lender against Borrowers in connection with or based
upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and
recovery may be had against Guarantor in such action or proceeding or in any
independent action or proceeding against Guarantor to the extent of Guarantor's
liability hereunder, without any requirement that Lender first assert, prosecute
or exhaust any remedy or claim against Borrowers or any other Person, or any
security for the obligations of Borrowers or any other Person.

            (i) Guarantor agrees that this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
is made by Borrowers or Guarantor to Lender and such payment is rescinded or
must otherwise be returned by Lender (as determined by Lender in its sole and
absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership, conservatorship, winding
up or other similar proceeding involving or affecting any Borrower or Guarantor,
all as though such payment had not been made.

            (j) In the event that Guarantor shall advance or become obligated to
pay any sums under this Guaranty or in connection with the Guaranteed
Obligations or in the event that for any reason whatsoever any Borrower or any
subsequent owner of any Property or any part thereof is now, or shall hereafter
become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums
and of such indebtedness and all interest thereon shall at all times be
subordinate as to the lien, the time of payment and in all other respects to all
sums, including principal and interest and other amounts, at any time owed to
Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to
enforce or receive payment thereof until all principal, interest and other sums
due pursuant to the Loan Documents have been paid in full. Nothing herein
contained is intended or shall be construed to give Guarantor any right of
subrogation in or under the Loan Documents or any right to participate in any
way therein, or in the right, title or interest of Lender

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in or to any collateral for the Loan, notwithstanding any payments made by
Guarantor under this Guaranty, until the actual and irrevocable receipt by
Lender of payment in full of all principal, interest and other sums due with
respect to the Loan or otherwise payable under the Loan Documents. If any amount
shall be paid to Guarantor on account of such subrogation rights at any time
when any such sums due and owing to Lender shall not have been fully paid, such
amount shall be paid by Guarantor to Lender for credit and application against
such sums due and owing to Lender. The foregoing shall not prohibit Borrowers
from using the proceeds of the Loan for any permitted use under the Loan
Agreement, including, without limitation, the making of distributions to
Guarantor.

            (k) Guarantor's obligations hereunder shall survive a foreclosure,
delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or
similar proceeding involving any Property or any part thereof and the exercise
by Lender of any of all of its remedies pursuant to the Loan Documents.
Notwithstanding the foregoing to the contrary, the obligations and liabilities
of Guarantor under this Guaranty shall survive for a period of two (2) years
following payment in full of the Obligations in accordance with the terms of the
Loan Documents, provided, however, in the event that any Guaranteed Obligations
or liabilities of the Guarantor under this Guaranty shall have arisen prior to
the expiration of such period, then in any such event the foregoing survival
period shall not apply and the obligations and liabilities of Guarantor
hereunder shall survive.

            SECTION 7. ENTIRE AGREEMENT/AMENDMENTS. THIS INSTRUMENT REPRESENTS
THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF. THE TERMS OF THIS GUARANTY SHALL NOT BE WAIVED, ALTERED, MODIFIED,
AMENDED, SUPPLEMENTED OR TERMINATED IN ANY MANNER WHATSOEVER EXCEPT BY WRITTEN
INSTRUMENT SIGNED BY LENDER AND GUARANTOR.

            SECTION 8. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding
upon Guarantor, and its successors and assigns, may not be assigned or delegated
by Guarantor and shall inure to the benefit of Lender and its successors and
assigns. Lender shall have the right to assign this Guaranty and the obligations
hereunder in connection with any assignment or transfer of all or any portion of
the Loan or any interest therein. All references to "Lender" hereunder shall be
deemed to include the successors and assigns of Lender and the parties hereto
acknowledge that actions taken by Lender hereunder may be taken by Lender's
agents and by the agents of the successors and assigns of Lender.

            SECTION 9. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Guaranty
shall be governed by, and construed in accordance with, the substantive laws of
the State of New York. Guarantor irrevocably (a) agrees that any suit, action or
other legal proceeding arising out of or relating to this Guaranty may be
brought in a court of record in the City and County of New York or in the Courts
of the United States of America located in the Southern District of New York,
(b) consents to the jurisdiction of each such court in any such suit, action or
proceeding and (c) waives any objection which it may have to the laying of venue
of any such suit, action or proceeding in any of such courts and any claim that
any such suit, action or proceeding has been brought in an inconvenient forum.
Guarantor irrevocably consents to the service of any and all process in any such
suit, action or proceeding by service of copies of such process to Guarantor at
its address set forth on the first page hereof. Nothing in this Section 9,
however, shall affect the right of Lender to serve legal process in any other
manner permitted by law or affect the right of

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Lender to bring any suit, action or proceeding against Guarantor or its property
in the courts of any other jurisdictions.

            SECTION 10. SECTION HEADINGS. The headings of the sections and
paragraphs of this Guaranty have been inserted for convenience of reference only
and shall in no way define, modify, limit or amplify any of the terms or
provisions hereof.

            SECTION 11. SEVERABILITY. Any provision of this Guaranty which may
be determined by any competent authority to be prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Guarantor hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.

            SECTION 12. WAIVER OF TRIAL BY JURY. EACH OF GUARANTOR AND LENDER
HEREBY WAIVES THE RIGHT OF TRIAL BY JURY IN ANY LITIGATION, ACTION OR PROCEEDING
ARISING HEREUNDER OR IN CONNECTION THEREWITH.

            SECTION 13. OTHER GUARANTIES; SINGULAR AND PLURAL; JOINT AND SEVERAL
LIABILITY.

            (a) The obligations of Guarantor hereunder are separate and distinct
from, and in addition to, the obligations of Guarantor now or hereafter arising
under the other guaranties pursuant to which Guarantor has guaranteed the
payment and performance of certain other obligations of Borrowers described
therein.

            (b) If there is more than one entity comprising Guarantor, all
references to Guarantor herein shall be to Guarantor (but not its members,
partners, employees, shareholders, agents, directors or officers) or any one or
more of them. All obligations and liabilities of Guarantor hereunder are in
addition to, not in lieu of and are independent of: (i) all obligations of
Borrowers under any other Loan Document, including the Note and the Loan
Agreement; and (ii) any obligation of Guarantor under any other Loan Document to
which Guarantor is a party.

            (c) If there is more than one entity comprising Guarantor, all
obligations of Guarantor hereunder shall be joint and several.

            SECTION 14. NOTICES. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given hereunder to
Lender or Guarantor or which are given to Lender or Guarantor with respect to
this Guaranty shall be in writing and shall be delivered to Lender at the
address set forth in Section 14.5 of the Loan Agreement and to Guarantor at the
address set forth on the first page hereof, each in the manner provided in
Section 14.5 of the Loan Agreement. Guarantor agrees to give Lender not less
than ten (10) days' prior written notice of any change in the location of
Guarantor's principal place of business.

            SECTION 15. GUARANTOR'S RECEIPT OF LOAN DOCUMENTS. Guarantor by its
execution hereof acknowledges receipt of true copies of all of the Loan
Documents, the terms and conditions of which are hereby incorporated herein by
reference.

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            SECTION 16. INTEREST; EXPENSES.

            (a) If Guarantor fails to pay all or any sums due hereunder within
ten (10) days of demand by Lender, the amount of such sums payable by Guarantor
to Lender shall bear interest from the date of demand until paid at the Default
Rate in effect from time to time.

            (b) Guarantor hereby agrees to pay all reasonable out of pocket
costs, charges and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by Lender in enforcing
the covenants, agreements, obligations and liabilities of Guarantor under this
Guaranty.

         [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]

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            IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
date first above written.

                                          GUARANTOR:

                                          LODGIAN, INC., a Delaware
                                          corporation

                                          By: /s/ Daniel E. Ellis
                                              ----------------------------------
                                                 Name: Daniel E. Ellis
                                                 Title: Senior Vice-President


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