Exhibit 3.14.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ALBANY HOTEL, INC.
Pursuant to Sections 607.1006 and 607.1007 of the Florida General
Corporation Act (the "Act"), ALBANY HOTEL, INC., a Florida corporation (the
"Corporation"), hereby executes and submits for filing with the Department of
State, State of Florida, these Second Amended and Restated Articles of
Incorporation (the "Amended Articles"), to read as follows:
ARTICLE I
The name of the Corporation is ALBANY HOTEL, INC. The address of the
principal office and the mailing address of the Corporation is 3445 Peachtree
Road, N.E., Two Live Oak Center, Suite 700, Atlanta, GA 30326.
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 Omni Albany Hotel, located at Ten Eyck Plaza,
Albany, New York 12207 (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 Florida.
(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
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. Sections 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 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
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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 V 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 number of shares the Corporation is authorized to issue is One
Thousand (1,000) each with the par value of Zero Dollars and One Cent ($0.01).
The Board of Directors shall fix the consideration to be received for each
share. Such consideration shall consist of any tangible or intangible property
or benefit to the Corporation, including cash, promissory notes, services
performed or written promises to perform such services and shall have a value,
in the judgment of the directors, equivalent to or greater than the full par
value of the shares.
ARTICLE IV
The Board of Directors of the Corporation is expressly authorized to
adopt, alter, amend or repeal the Bylaws of the Corporation subject to the
limitations set forth in these Amended Articles. Election of directors need not
be by written ballot unless and to the extent provided in the Bylaws of the
Corporation.
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ARTICLE V
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.
ARTICLE VI
Subject to the limitations set forth in these Amended Articles, the
Corporation reserves to its shareholders the right to amend or repeal any
provisions nor or hereafter contained in these Amended Articles. Subject to the
foregoing, any rights which these Amended Articles may confer upon the
Corporation may be modified or cancelled by a vote of the shareholders to amend
or repeal said Amended Articles.
The foregoing Second Amended and Restated Articles of Incorporation
were duly adopted and approved by the sole shareholder and the Board of
Directors of the Corporation by unanimous written consent in lieu of a meeting,
pursuant to Sections 607.0704 and 607.0821 of the Florida General Corporation
Act, as of July 22nd, 1999. The number of votes cast was sufficient for
approval.
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IN WITNESS WHEREOF, the undersigned has executed these Second Amended
and Restated Articles of Incorporation this 23rd day of July, 1999.
ALBANY HOTEL, INC.
By: /s/ Thomas S. Gryboski
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Name: Tom Gyboski
Title: Assistant Secretary