Exhibit 3.3.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DOTHAN HOSPITALITY 3053, INC.
Pursuant to Sections 10-2B-10.06 and 10-2B-10.07 of the Alabama
Business Corporation Act, DOTHAN HOSPITALITY 3053, INC., an Alabama corporation
(the "Corporation"), hereby certifies that these Second 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 l0-2B-8.21 and l0-2B-7.04 of the
Alabama Business Corporation Act, as of July ___, 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 heretofore amended. These
Amended Articles supercede the original Articles of Incorporation and all
amendments thereto.
ARTICLE I
The name of the Corporation is DOTHAN HOSPITALITY 3053, INC.
ARTICLE II
The total number of shares of common stock which the Corporation
shall have authority to issue is 1,000 shares of common stock, par value $0.01
per share.
ARTICLE III
The street address of the registered office of the Corporation is
The Corporation Company, 60 Commerce Street, Suite 1100, Montgomery, Alabama
36104, and the name of its registered agent at that office is The Corporation
Company.
ARTICLE IV
The name and address of the incorporator of the Corporation was
David Buddemeyer, 1601 Belvedere Road, West Palm Beach, Florida 33406.
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
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follows:
Name Address
Robert M. Flanders 3445 Peachtree Road, N.E.,
Two Live Oak Center, Suite 700,
Atlanta, GA 30326.
ARTICLE VI
(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 West, located at 3053 Ross Clark
Circle, Dothan, Alabama 36301 (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 Alabama.
(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,
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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 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
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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 VI and the last sentence of Article IX 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 VII
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 VIII
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, or (iii) for
any transaction from which the director derived an improper personal benefit. If
the Alabama Business 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 Alabama Business Corporation Act, as so amended.
The rights and authority conferred in this Article VIII 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 IX
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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 27th day of July, 1999.
DOTHAN HOSPITALITY 3053, INC.
By: /s/ Thomas S. Gryboski
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Name: Tom Gryboski
Title: Assistant Secretary
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