Exhibit 3.19.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SERVICO WINDSOR, INC.
Pursuant to Sections 607.1006 and 607.1007 of the Florida General
Corporation Act (the "Act"), SERVICO WINDSOR, 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 SERVICO WINDSOR, INC.
ARTICLE II
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. The name and address of the registered agent is CT
Corporation System, 1200 S. Pine Island Road, Suite 250, Plantation, Florida
33324.
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 Holiday Inn Select Windsor, located at 1855 Huron
Church Road, Windsor, Ontario, Canada N9C2L6 (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. 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 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 total number of shares of stock which the Corporation shall have
authority to issue is One Thousand (1,000) shares of common stock, One Cent
($0.01) par value per share.
ARTICLE V
The number of directors constituting the board of directors of the
Corporation shall be at least one (1), and the name and address of the person
who is to serve as the sole director until the annual meeting of shareholders
and until his successor is elected and shall qualify is as follows:
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Name Address
Robert M. Flanders 3445 Peachtree Road, N.E.,
Two Live Oak Center, Suite 700,
Atlanta, GA 30326.
ARTICLE VI
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.
ARTICLE VII
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, or (iii) for any transaction from which the director derived
an improper personal benefit. If the Florida General Corporation Law 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 Pennsylvania Business Corporation Law, 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 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.
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
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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 WINDSOR, INC.
By: /s/ Thomas S. Gryboski
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Name: Tom Gyboski
Title: Assistant Secretary