Exhibit 3.28.1
ARTICLES OF AMENDMENT AND RESTATMENT OF
SERVICO COLESVILLE, INC.
Pursuant to Sections 2-607, 2-608 and 2-609 of the Maryland General
Corporation Law, SERVICO COLESVILLE, INC., a Maryland corporation (the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that these Amended and Restated Articles of Incorporation
(the "Amended Articles"), were duly advised and approved by the entire Board of
Directors of the Corporation and approved by the sole shareholder of the
Corporation by written consent without a meeting, pursuant to Sections 2-408(c)
and 2-503 of the Maryland Corporation Law, as of July 23, 1999. The Articles as
currently in effect shall be amended and restated to read as herein set forth in
full:
ARTICLE I
The name of the Corporation is SERVICO COLESVILLE, INC.
ARTICLE II
(a) The purpose for which the Corporation is organized is limited
to: (i) acquiring, owning, leasing, operating, using and managing that certain
real property commonly known as the Town Center located at 8727 Colesville Road,
Silver Spring, Maryland 20910 (the "Property"); (ii) entering into and
performing its obligations under the credit agreement, among Lodgian Financing
Corp., as borrower, Lodgian, Inc., its parent, Impac Hotel Group, LLC, Servico,
Inc. and other affiliated entities, as affiliate guarantors, the initial lenders
and initial issuing bank named therein, the collateral agent, the administrative
agent, Morgan Stanley Senior Funding, Inc., as co-lead arranger, joint-book
manager and syndication agent and Lehman Brothers, as co-lead arranger,
joint-book manager and documentation agent relating to the financing or
refinancing of the Property (the "Loan Agreement") which provides the lender
thereunder with a first priority lien on the Property, any promissory-note
evidencing indebtedness incurred pursuant to the Loan Agreement, any mortgage
securing such indebtedness and encumbering the Property (the "Mortgage") and any
other documents securing such indebtedness and any related collateral documents,
each as amended (or pursuant to a consent obtained in accordance with the terms
thereof) (collectively, the "Loan Documents"); (iii) entering into and
performing its obligations under the Indenture (the "Indenture"), among Lodgian
Financing Corp, as issuer, Lodgian, Inc., the Subsidiary Guarantors defined
therein and Bankers Trust Company, as trustee, relating to the issuance of the
12 1/4% Senior Subordinated Notes due 2009 and the Guarantee in favor of the
holders of the Notes and (iv) transacting any and all lawful business that is
incident and necessary or appropriate to the ownership and to the management of
the Property for which a corporation may be incorporated under the laws of the
State of Maryland.
(b) Notwithstanding any other provision of these Amended Articles
and any provision of law that otherwise so empowers the Corporation, until such
time as the Property is released from the lien of the Mortgage, the Corporation
shall not, without the unanimous
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affirmative vote of the members of its Board of Directors, (i) amend, alter,
change, repeal or adopt any resolution setting forth a proposed amendment to,
any provision of these Articles of Incorporation, (ii) dissolve or liquidate, in
whole or in part, consolidate or merge with or into any other entity or convey,
sell or transfer its properties and assets substantially as an entirety to any
entity, (iii) file a voluntary petition or otherwise initiate, or consent to,
proceedings for the Corporation to be adjudicated insolvent or seeking an order
for relief as a debtor under the United States Bankruptcy Code, as amended (11
U.S.C. ss.ss. 101 et seq.), or (iv) file any petition, or consent to any
petition, seeking any composition, reorganization, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
laws or any other present or future applicable federal, state or other statute
or law relative to bankruptcy, insolvency or other relief for debtors; or (v)
seek or consent to the appointment of any trustee, receiver, conservator,
assignee, sequestrator, custodian, or liquidator (or other similar official) of
the Corporation or of all or any substantial part of the properties and assets
of the Corporation, or (vi) make any general assignment for the benefit of
creditors, or (vii) admit in writing its inability to pay its debts generally as
they become due, or (viii) declare or effect a moratorium on its debt or take
any corporate action in furtherance of any such action.
(c) The Board of Directors of the Corporation shall, at all times
until the Property is released from the lien of the Mortgage, include an
independent director (the "Independent Director"). The Independent Director
shall be a person who is not at the time of appointment and who has not at any
time during the prior five years been and who is not while serving as the
Independent Director (i) a director, stockholder, officer or employee of the
Corporation or any affiliates thereof, other than with respect to such person's
service as an Independent Director of the Corporation and such person's service
in similar "Independent Director" positions for affiliates of the Corporation;
(ii) a creditor, customer, supplier, independent contractor, manager or any
other person who derives more than 10% of its gross revenues from its activities
wit the Corporation or any affiliates thereof; (iii) a person controlling any
such stockholder, creditor, customer, supplier, independent contractor, manager
or other person; (iv) the legal or beneficial owner, at any time while serving
as director of the Corporation, of any beneficial interest in the Corporation;
or (v) a member of the immediate family of any such stockholder, officer,
employee, creditor, customer, supplier, director, independent contractor,
manager or any other person of the Corporation. As used herein, the term
"affiliate" means any person controlling, under common control with, or
controlled by the person in question, and the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through ownership
of voting securities, by contract or otherwise. In the event of the death,
incapacity, or resignation of an Independent Director, or the vacancy of the
Independent Director's seat on the Corporation's Board of Directors for any
reason, a successor Independent Director shall be appointed by the remaining
directors.
(d) Except as otherwise permitted by the Loan Documents, so long as
the Property is subject to the lien of the Mortgage, the Corporation shall (i)
observe all corporate formalities, including the maintenance of current minute
books; (ii) maintain its own separate and distinct books of account and
corporate records from any other person or entity; (iii) cause its financial
statements to be prepared in accordance with generally accepted accounting
principles
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in a manner that indicates the separate existence of the Corporation and its
assets and liabilities from any other person or entity; (iv) pay all its
liabilities out of its own funds; (v) in all dealings, identify itself, and
conduct its own business and hold itself out under its own name and as a
separate and distinct entity and correct any misunderstandings regarding its
status as a separate entity; (vi) independently make decisions with respect to
its business and daily operations; (vii) maintain an arm's length relationship
with its affiliates; (viii) pay the salaries of its employees and maintain a
sufficient number of employees in light of its contemplated business operations;
(ix) allocate fairly and reasonably any overhead for shared office space; and
(x) use separate stationery, invoices and checks.
(e) Except as otherwise permitted by the Loan Documents, so long as
the Property is subject to the lien of the Mortgage, the Corporation shall not
(i) commingle its assets with those of, or pledge its assets for the benefit of,
any other person or entity; (ii) assume, guarantee or become obligated, or hold
out its credit as being available to satisfy, the liabilities or obligations of
any other person or entity; (iii) reduce its capital below an amount which is
adequate in light of its contemplated business operations; (iv) acquire
obligations or securities of, or make loans or advances to, any affiliate; (v)
incur or assume any indebtedness other than (A) the indebtedness underlying the
Loan Agreement, (B) the indebtedness underlying the Indenture, and (C)
liabilities (including, but not limited to, trade payables) arising in the
ordinary course of the Corporation's business relating to the acquisition,
ownership, operation, lease, use or management of the Property; (vi) amend,
alter, change or repeal any provision of Article II and the last sentence of
Article VI of these Amended Articles; (vii) engage in any dissolution or
liquidation, in whole or in part, consolidation or merger with or into any other
entity or conveyance, sale or transfer of its properties and assets
substantially as an entirety to any entity; or (viii) engage in any business or
activity other than as set forth in these Amended Articles. Notwithstanding
anything contained herein to the contrary, nothing herein shall be deemed to
prohibit or otherwise limit any dividends or other distributions from the
Corporation to its shareholders.
ARTICLE III
The post office address of the principal office of the Corporation in the
State is c/o The Corporation Trust Incorporated, 300 East Lombard Street,
Baltimore, Maryland 21202. The name of the resident agent of the Corporation in
this State is Corporation Trust Incorporated, a corporation of this State, and
the post-office address of the resident agent is 300 East Lombard Street,
Baltimore, Maryland 21202.
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is One Thousand (1,000) shares, all of one class, of the par
value of Zero Dollars and One Cent ($0.01) each and of the aggregate par value
of Ten Dollars ($10.00).
ARTICLE V
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The number of directors of the Corporation shall be at least one
(1), which may be changed in accordance with the bylaws of the Corporation. The
name of the directors who shall act until the next annual meeting or until her
successor is duly chosen and qualified is Robert Flanders.
ARTICLE VI
The Corporation shall indemnify any officer or director, or any
former officer or director of the Corporation, to the fullest extent permitted
by law. The foregoing right of indemnification shall not be exclusive of any
other rights to which any director, officer, employee or agent may be entitled
as a matter of law or which he may be lawfully granted. The Corporation's
obligation to indemnify its officers and directors pursuant to this Article
shall be subordinate in all respects to the obligations of the Corporation
arising out of the Loan Documents and shall not constitute a claim against the
Corporation to the extent that the Corporation is unable to pay any amounts it
is obligated to pay under the Loan Documents.
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IN WITNESS WHEREOF, the undersigned President of Servico Colesville,
Inc. who is executing on behalf of said Corporation the foregoing Amended and
Restated Articles of Incorporation, of which this certificate is made a part,
hereby acknowledges, in the name and on behalf of said Corporation, the
foregoing Amended and Restated Articles of Incorporation to be the corporate act
of said Corporation and further certifies that, to the best of her knowledge,
information and belief, that matters and facts set forth therein with respect to
the approval thereof are true in all material respects, under penalties of
perjury.
Dated the 23rd day of July, 1999.
SERVICO COLESVILLE, INC.
By: /s/ Robert M. Flanders
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Name: Robert M. Flanders
Title: President
Attest:
/s/ Thomas S. Gryboski
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Thomas S. Gryboski, Assistant Secretary
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