Exhibit 3.25.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
SERVICO CEDAR RAPIDS, INC.
Pursuant to Sections 490.1006 and 490.1007 of the Iowa Business
Corporation Act (the "Act"), SERVICO CEDAR RAPIDS, INC., an Iowa 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 490.704 and 490.821 of the Act, as of
July 23, 1999. The number of outstanding shares of common stock of the
Corporation (and the number entitled to vote thereon) is 1,000. The number of
votes cast was sufficient for approval. The Articles shall be amended and
restated to read as herein set forth in full:
ARTICLE I
The name of the Corporation is SERVICO CEDAR RAPIDS, INC.
ARTICLE II
The number of shares the Corporation is authorized to issue is One
Thousand (1,000) shares of common stock, $0.01 par value.
ARTICLE III
The registered office of the Corporation is located at c/o CT Corporation
System, 2222 Grand Avenue, Des Moines, Iowa 50312. The name of its registered
agent at that address is CT Corporation System.
ARTICLE IV
(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 Five Season Hotel, located at 350 First
Avenue, N.E. Cedar Rapids, Iowa 52401 (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
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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 Iowa.
(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
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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 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 IV and the last sentence of
Article VII 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 V
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The board of directors shall consist of at least one (1) person. The
number of directors may be either increased or decreased from time to time as
provided in the Bylaws of the Corporation, but shall never be less than one. The
name and address of the member of the Board of Directors of the Corporation is:
Karyn Marasco 3445 Peachtree Road, N.E.
Two Live Oak Center, Suite 700
Atlanta, Georgia 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 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 Amended and
Restated Articles of Incorporation this 23rd day of July, 1999.
SERVICO CEDAR RAPIDS, INC.
By: /s/ Thomas S. Gryboski
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Name: Thomas S. Gryboski
Title: Assistant Secretary
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