Exhibit 5.2
[Letterhead of Cadwalader, Wickersham & Taft]
August , 1999
Lodgian Capital Trust I
Lodgian, Inc.
3445 Peachtree N.E.
Suite 700
Atlanta, Georgia 30326
Re: LODGIAN CAPITAL TRUST I
Ladies and Gentlemen:
We have acted as counsel to Lodgian, Inc., a Delaware corporation (the
"Company"), and Lodgian Capital Trust I, a Delaware statutory business trust
(the "Trust"), in connection with the preparation of a Registration Statement on
Form S-1 (the "Registration Statement") to be filed by the Company and the Trust
with the Securities and Exchange Commission (the "SEC") for the purpose of
registering under the Securities Act of 1933, as amended, the Convertible
Redeemable Equity Structured Trust Securities (the "CRESTS") of the Trust, the
7% Convertible Junior Subordinated Debentures (the "Debentures") of the Company,
the guarantee of the Company with respect to the CRESTS (the "Guarantee") and
the shares of the common stock, par value $.01 per share, of the Company (the
"Common Stock") issuable upon the conversion of the CRESTS and the Debentures.
In connection with this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of (i) the Articles of
Incorporation and By-laws of the Company (ii) the Certificate of Trust (the
"Certificate of Trust") filed by the Trust with the Secretary of State of the
State of Delaware on May 15, 1998 (iii) the Amended and Restated Declaration of
Trust, dated as of June 17, 1998, with respect to the Trust (the "Declaration");
(iv) the form of the CRESTS; (v) the form of the Guarantee among the Company,
Servico, Inc., a Florida corporation ("Servico"), and Wilmington Trust Company,
as trustee (the "Trustee"), (vi) the form of the Debentures; (vii) the
Indenture, dated as of June 17, 1998, among the Company, Servico, and the
Trustee, as supplemented by the First Supplemental Indenture, dated as of June
17, 1998 among the company, Lodgian and the Trustee with respect to the
Debentures (the "Indenture") and (viii) the Registration Statement. We have also
examined originals or copies, certified, or otherwise identified to our
satisfaction, of
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Lodgian Capital Trust I -2- August 24, 1999
such other documents, certificates, and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as copies and the authenticity of the originals of such copies.
We have also assumed the absence of any undisclosed amendments of supplements
to, or modifications or terminations of, any such documents and the absence of
any undisclosed waiver of any right or remedy contained in any such documents.
In examining documents executed by parties other than the Company or the Trust,
we have assumed that such parties had the power, corporate or otherwise, to
enter into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or otherwise, and execution and
delivery by such parties of such documents and that, except as set forth in
paragraphs (1) and (2) below, such documents constitute valid and binding
obligations of such parties. As to any facts material to the opinions expressed
herein which were not independently established or verified, we have relied upon
oral or written statements and representations of officers, trustees, and other
representatives of the Company, the Trust and others.
In rendering the opinions below, we do not express any opinion concerning the
laws of any jurisdiction other than the substantive laws of the State of New
York and, where expressly referred to below, the General Corporation Law of the
State of Delaware and the substantive federal laws of the United States of
America (in each case without regard to conflicts of law principles), and we
express no opinion as to whether a court outside the State of New York would
honor the choice of New York law in any agreement or instrument referred to
herein. Our opinions are limited to the laws and regulations within the scope of
this opinion in effect on the date of this opinion, and we offer no opinion as
to the possible application of the laws of other jurisdictions, unless they are
specifically referred to herein, and have no responsibility to advise you of
changes in such laws or regulations which may hereafter come to our attention.
Based upon and subject to the foregoing and other qualifications and limitations
set forth herein, we are of the opinion that:
1. The Debentures, when duly executed, delivered, authenticated and issued in
accordance with the Indenture and delivered and paid for as contemplated by the
Registration Statement, will be valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except (i) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar law now or
thereafter in effect relating to creditors' rights and remedies generally, (ii)
as to general principles of equity regardless of whether enforceability is
considered in a proceeding at law or in equity, (iii) to the extent that a
waiver of rights under any usury laws may be
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Lodgian Capital Trust I -3- August 24, 1999
unenforceable and (iv) as rights to indemnity may be limited by federal or state
securities laws or the public policy underlying such laws.
2. The Guarantee is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except (i) as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and
remedies generally, (ii) as to general principles of equity regardless of
whether enforceability is considered in a proceeding at law or in equity, (iii)
to the extent that a waiver of rights under any usury laws may be unenforceable
and (iv) as rights to indemnity may be limited by federal or state securities
laws or the public policy underlying such laws.
3. The Common Stock, when issued and delivered by the Company upon conversion of
the CRESTS or the Debentures in accordance with their respective terms, will be
validly issued, fully paid and non-assessable.
4. The statements made in the Prospectus constituting a part of the Registration
Statement under the caption "Certain U.S. Federal Income Tax Considerations,"
insofar as such statements purport to summarize certain federal income tax laws
of the United States of America, constitute a fair summary of the principal
federal income tax consequences of an investment in the Exchange Notes.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the reference to this Firm in the Prospectus
constituting a part of the Registration Statement under the caption "Legal
Matters," without admitting that we are "experts" within the meaning of the
Securities Act or the rules and regulations of the Commission issued thereunder
with respect to any part of the Registration Statement, including this exhibit.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft