Exhibit 3.17.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SERVICO SILVER SPRING, INC.
Pursuant to Sections 607.1006 and 607.1007 of the Florida General
Corporation Act (the "Act"), SERVICO SILVER SPRING, 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 corporate name that satisfied the requirements of Section 607.0401
is SERVICO SILVER SPRING, INC.
ARTICLE II
The street address of the principal office of the Corporation and its
mailing address is 3445 Peachtree Road, N.E., Two Live Oak Center, Suite 700,
Atlanta, GA 30326.
ARTICLE III
(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 Days Inn Silver Spring, located at 8040 13th
Street, Silver Spring, Maryland 20910 (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.
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(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 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 III 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 IV
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.
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ARTICLE V
The number of directors of the Corporation my be fixed by the Bylaws of
the Corporation. The number of directors constituting the Board of Directors
shall be at least one (1), and the name and address of the director of the
Corporation to serve until the next annual meeting of the shareholders or until
a successor is elected or qualified is:
Name Address
Robert M. Flanders 3445 Peachtree Road, NE, Suite 700
Atlanta, GA 30326
ARTICLE VI
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.
ARTICLE VII
The business and affairs of the Corporation shall be managed and
regulated by the board of directors of the Corporation. No director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duties 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 on good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 607.144 of the Florida General Corporation Act or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Florida General Corporation Act is amended after the date of these Amended
Articles to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Florida General Corporation Act, as so amended.
The rights and authority conferred in this Article VII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of these Amended Articles or Bylaws of the
Corporation, agreement, vote of stockholders or disinterested directors, or
otherwise.
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
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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 IX
Subject to the provisions of Article III(e)(vi), the Corporation
reserves to its shareholders the right to amend or repeal any provisions now or
hereafter contained in these Amended Articles. Any rights which these Amended
Articles may confer upon the Corporation may be modified or canceled 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.
SERVICO SILVER SPRING, INC.
By: /s/ Thomas S. Gryboski
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Name: Tom Gyboski
Title: Assistant Secretary