Exhibit 3.15.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SERVICO FLAGSTAFF, INC.
(AN ARIZONA BUSINESS CORPORATION)
Pursuant to Sections 10-061 and 10-064 of the Arizona General
Corporation Law, SERVICO FLAGSTAFF, INC., an Arizona corporation (the
"Corporation"), hereby certifies that these Amended and Restated Articles of
Incorporation (the "Amended Articles"), which contain amendments requiring
shareholder approval, were duly adopted 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 l0-821 and l0-704 of the Arizona
Business Corporation Act, 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. These Amended Articles correctly set forth the provisions of
the Articles of Incorporation as theretofore amended. These Amended Articles
supercede the original Articles of Incorporation and all amendments thereto.
1. NAME. The name of the Corporation is SERVICO FLAGSTAFF, INC.
2. PURPOSE.
(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 Howard Johnson Flagstaff, located at 2200 East
Butler Avenue, Flagstaff, Arizona 88001 (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 Arizona.
(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. 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
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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 2 and the last sentence of
Article 11 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.
3. INITIAL BUSINESS. The Corporation initially intended to conduct
and currently conducts the business of owning, operating, using and managing a
hotel in the State of Arizona.
4. AUTHORIZED CAPITAL. The Corporation shall have authority to issue
One Thousand (1,000) shares of common stock, one cent ($0.01) par value per
share.
5. KNOWN PLACE OF BUSINESS. (In Arizona)
The street address of the known place of business of the
Corporation is:
c/o CT Corporation System
3325 North Central Avenue
Phoenix, Maricopa County, AZ 85012
6. STATUTORY AGENT. (In Arizona)
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The name and address of the statutory agent of the Corporation is:
c/o CT Corporation System
3325 North Central Avenue
Phoenix, Maricopa County, AZ 85012
7. BOARD OF DIRECTORS. The Board of Directors of the Corporation
shall consist of at least one (1) director. The number of directors may be
either increased or decreased from time to time as provided for in the Bylaws of
the Corporation, but shall never be less than one. The name and address of the
person who is to serve as the member of the board of directors until the annual
meeting of shareholders or until her successor(s) is (are) elected and qualified
is:
Karyn Marasco 3345 Peachtree Road, N.E.
Two Live Oak Center, Suite 700
Atlanta, GA 30326
8. INCORPORATORS. (Minimum of one)
The name and address of the incorporator was:
David Buddemeyer 1601 Belvedere Road
West Palm Beach, FL 33406
All powers, duties and responsibilities of the incorporator ceased at
the time of delivery of the original Articles of Incorporation to the Arizona
Corporation Commission.
9. BYLAWS; ELECTION OF DIRECTORS. The Board of Directors 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.
10. DIRECTORS' LIABILITY. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 10-833 of the
Arizona Business Corporations Act, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Arizona Business
Corporation Act is amended after the date of these Amended Articles to authorize
corporate action further limiting or eliminating the personal liability of
directors, then the liability of each director of the Corporation shall be
limited or eliminated to the fullest extent permitted by the Arizona Business
Corporation Act, as so amended.
The right and authority conferred in this Article 10 shall not be
exclusive of any other rights that any person may have or hereafter acquire
under any statute, provision of these Amended Articles or the Bylaws of the
Corporation, agreement, vote of the stockholders or disinterested directors or
otherwise.
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11. INDEMNIFICATION. 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 has executed these Second Amended
and Restated Articles of Incorporation this 23rd day of July, 1999.
SERVICO FLAGSTAFF, INC.
By: /s/ Robert M. Flanders
--------------------------------
President
By: /s/ Thomas S. Gryboski
--------------------------------
Assistant Secretary
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