Exhibit 3.34.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LODGIAN MOUNT LAUREL, INC.
THIS IS TO CERTIFY that LODGIAN MOUNT LAUREL, INC. (the "Corporation"),
a corporation under and by virtue of N.J.S. 14A:1-1 ET SEQ., the "New Jersey
Business Corporation Act", does hereby, pursuant to N.J.S. 14:9-5: (i) amend its
Certificate of Incorporation to reflect certain conditions required by its
lenders in connection with a corporate loan transaction; and (ii) restate its
Certificate of Incorporation to embody in one document its original Certificate
and all such amendments described above.
The Corporation hereby certifies the following which (i) sets forth in
full its Certificate of Incorporation as of this date, and (ii) supersedes and
replaces its original Certificate of Incorporation and any amendments filed
prior to the date hereof:
ARTICLE I
The name of the Corporation is LODGIAN MOUNT LAUREL, 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 set forth on Exhibit "A" attached hereto and made a part hereof (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 and for which a corporation may
be incorporated under the "New Jersey Business Corporation Act" N.J.S. 14A:1-1
et seq.
(b) Notwithstanding any other provision of this Amended Certificate of
Incorporation 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 this
Certificate 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 (5) 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 ten percent (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
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
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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 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 this Amended Certificate of Incorporation; (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 address (and zip code) of the Corporation's registered office is
Parker, McCay & Criscuolo, 401 Three Greentree Centre, Marlton, New Jersey,
08053, and the name of the Corporation's registered agent at such address is
John Michael Devlin, Esquire.
ARTICLE IV
The aggregate number of shares which the Corporation shall have the
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).
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ARTICLE V
The Board of Directors of the Corporation shall consist of three (3)
directors. The name and address of each person who is to serve as Director is:
Name Address Zip Code
---- ------- --------
Robert M. Flanders c/o Lodgian, Inc. 30326
Two Live Oak Center
Suite 700
3445 Peachtree Road, N.E.
Atlanta, Georgia
Mark K. Rafuse c/o Lodgian, Inc. 30326
Two Live Oak Center
Suite 700
3445 Peachtree Road, N.E.
Atlanta, Georgia
Carl E.B. McKenry c/o University of Miami 33124-9145
School of Business
414 Jenkins Bldg.
Coral Gables, Florida
The said Carl E.B. McKenry is identified as the independent Director.
The number of Directors of the Corporation may be changed in accordance with the
By-Laws of the Corporation, but shall be composed of at least one (1) member.
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 Lodgian Mount Laurel,
Inc. has signed this Amended and Restated Certificate of Incorporation as of the
23rd day of July, 1999.
LODGIAN MOUNT LAUREL, INC.
By: /s/ ROBERT M. FLANDERS
-----------------------------------
Name: Robert M. Flanders
Title: President
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CERTIFICATE ATTACHED TO AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION
OF LODGIAN MOUNT LAUREL, INC.
1. The name of the Corporation is Lodgian Mount Laurel, Inc. (the
"Corporation").
2. The Amended and Restated Certificate of Incorporation was adopted by
its sole shareholder, Servico, Inc., on July 23, 1999.
3. The number of shares entitled to vote on the Amended and Restated
Certificate of Incorporation was 1000 shares of common stock.
The number of shares voted for and against the Restated Certificate was
1000 for and 0 against.
4. The Amendment to the Certificate of Incorporation provides for
certain amendments required by certain of the Corporation's lenders in
connection with a certain loan transaction between the Corporation and said
lenders.
5. The Amendment to the Certificate of Incorporation is to become
effective upon filing.
IN WITNESS WHEREOF, I have hereunto set my hand as of this 23rd day of
July, 1999.
LODGIAN MOUNT LAUREL, INC.
By:_________________________________
Robert M. Flanders, President
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