Exhibit 3.27.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SERVICO METAIRIE, INC.
Pursuant to Sections 12:32 and 12:34 of the Louisiana Business
Corporation Law (the "Louisiana Law"), SERVICO METAIRIE, INC., a Louisiana
corporation (the "Corporation"), hereby certifies that these Amended and
Restated Articles of Incorporation (the "Amended Articles"), accurately copy the
original articles and any amendments thereto in effect at the time of this
restatement without substantive change except as made by any new amendments
contained herein, and these Amended Articles contain amendments requiring
shareholder approval, which 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 12:79 and 12:81(9) of the Louisiana Law,
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. The
original Articles of Incorporation were filed with the Secretary of State of the
State of Louisiana on April 2, 1996. These Amended Articles correctly set forth
the provisions of the Articles of Incorporation as theretofore amended, which
amendment have been effected in conformity with the Louisiana Law. These Amended
Articles supercede the original Articles of Incorporation and all amendments
thereto.
ARTICLE I
The name of the Corporation is SERVICO METAIRIE, INC.
ARTICLE II
The registered office of the Corporation is located at 8550 United
Plaza Boulevard, Baton Rouge, Louisiana 70809. The name of its registered agent
at that address is CT Corporation System.
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 Quality Hotel, located at 2261 North Causeway
Boulevard, Metairie, Louisiana 70001 (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"), which obligations may include
guaranteeing the obligations of other affiliated entities; (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, which obligations may include guaranteeing the
obligations of other affiliated entities 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 Louisiana.
(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 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
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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 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 Third and the last sentence of
Article Eighth 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.
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ARTICLE IV
The total number of shares of stock which the Corporation shall have
the authority to issue is One Thousand (1,000) shares of common stock, one cent
($.01) par value per share.
ARTICLE V
The Board of Directors of the Corporation shall be comprised of at
least one (1) person. The number of directors may be increased or decreased from
time to time as provided for in the Bylaws of the Corporation, but shall never
be less than one (1).
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
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 12:92 of the Louisiana Law, or (iv) for
any transaction from which the director derived an improper personal benefit. If
the Louisiana 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 each director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Louisiana
Law, as so amended.
The rights and authority conferred in this Article Seventh 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.
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.
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IN WITNESS WHEREOF, the undersigned has executed these Amended and
Restated Articles of Incorporation this 22 day of July, 1999.
SERVICO METAIRIE, INC.
By: /s/ Robert M. Flanders
--------------------------
Name: Robert M. Flanders
Title: President
By: /s/ Thomas S. Gryboski
--------------------------
Name: Tom Gryboski
Title: Assistant Secretary
State of New York )
)
) ss.
)
County of New York )
The foregoing instrument was acknowledged before me this 22nd day of July,
1999, by Robert M. Flanders, as President, and Tom Gryboski, as Assistant
Secretary, of Servico Metairie, Inc., a Louisiana corporation, who are
personally known to me or who have produced a driver's license as
identification and who did (did not) take an oath.
/s/ Athena E. Alexander
--------------------------------
Print or Stamp Name:____________
Notary Public, State of New York
Commission No.:_________________
My Commission Expires:__________
ATHENA E. ALEXANDER
Notary Public, State of New York
No. 02-AL6020772
Qualified in New York County
Commission Expires March 8, 2001
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