Exhibit 3.38.1
RESTATED CERTIFICATE OF INCORPORATION
OF
SERVICO NIAGARA FALLS, INC.
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
1. The name of the corporation is SERVICO NIAGARA FALLS, INC.
2. The certificate of incorporation was filed by the department of
state on the 3rd day of December, 1997.
3. The text of the certificate of incorporation is hereby restated
as amended to effect one of the amendments authorized by the Business
Corporation Law, to wit:
The amendment replaces the Purpose clause of the certificate of
incorporation, which formerly stated as follows:
(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 Holiday Inn Select Niagara Falls, located at
114 Buffalo Street, Niagara Falls, New York 14303 (the "Property"); (ii)
entering into and performing its obligations under any loan agreement 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 (collectively, the "Loan Documents"); and (iii) 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 Alabama.
(b) Notwithstanding any other provision of this Amended Certificate
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 affirmative vote of the members of its Board of
Directors, 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 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 seek or
consent to the appointment of any trustee, receiver, conservator, assignee,
sequestrator,
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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
make any general assignment for the benefit of creditors, or admit in writing
its inability to pay its debts generally as they become due, or 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 wit, 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 contact 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 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;
(Lx) 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
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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, and (B)
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 Second and the last sentence of
Article Eighth of this Amended Certificate; (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 this Amended Certificate. 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.
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and to substitute the following provision:
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 Holiday Inn Select Niagara Falls, located at
114 Buffalo Street, Niagara Falls, New York 14303 (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 New York.
(b) Notwithstanding any other provision of this Amended Certificate
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 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
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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
with 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 wit, 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 contact 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 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
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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 VIII 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.
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The text of the Certificate of Incorporation is therefore restated
as amended to read as herein set forth in full:
ARTICLE I
The name of the Corporation is SERVICO NIAGARA FALLS, 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 Holiday Inn Select Niagara Falls, located at
114 Buffalo Street, Niagara Falls, New York 14303 (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 New York.
(b) Notwithstanding any other provision of this Amended Certificate
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 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
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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
with 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 wit, 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 contact 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 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.
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(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 VIII 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 office of the Corporation is to be located in the County of
Niagara, State of New York.
ARTICLE IV
The aggregate number of shares of stock which the Corporation shall
have the authority to issue is One Thousand (1,000) of the par value of Zero
Dollars and One Cent ($0.01) each.
ARTICLE V
The Secretary of State is designated as the agent of the Corporation
upon whom process against the Corporation may be served. The post office address
to which the Secretary of State shall mail a copy of any process against the
Corporation served upon him is c/o CT Corporation System, 1633 Broadway, New
York, New York 10019.
ARTICLE VI
The name and address of the registered agent which is to be the
agent of the Corporation upon which process against it may be served, are CT
Corporation System, 1633 Broadway, new York, New York 10019.
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ARTICLE VII
No director shall be personally liable to the Corporation or its
shareholders for damages for any breach of duty in such capacity, except that
this provision shall not eliminate or limit the liability of any director if
a judgment or other final adjudication adverse to such director establishes
that such director's acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that such director
personally gained in fact a financial profit or other advantage to which such
director was not legally entitled or that such director's acts violated
Section 719 of the New York Business Corporation Law, nor shall this
provision eliminate or limit the liability of any director for any act or
omission prior to the adoption of this provision.
ARTICLE VIII
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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4. This restatement of the certificate of incorporation was
authorized by the Board of Directors of the Corporation and by the sole
shareholder of the Corporation by written consent without a meeting, pursuant to
Sections 615 and 708(b) of the New York Business Corporation Law, as of July 23,
1999. The number of outstanding shares of common stock of the Corporation (and
the number of shares entitled to vote thereon) is 1,000. The number of votes
cast were sufficient for approval.
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IN WITNESS WHEREOF, the undersigned has executed this Second Amended
and Restated Certificate of Incorporation this 23rd day of July, 1999.
SERVICO NIAGARA FALLS, INC.
By: /s/ Thomas S. Gryboski
-------------------------------------
Name: Tom Gryboski
Title: Assistant Secretary
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