Exhibit 3.39.1
State of North Carolina
Department of the Secretary of State
RESTATED
ARTICLES OF INCORPORATION OF
FAYETTEVILLE MOTEL ENTERPRISES, INC.
Pursuant to Section 55-10-06 and 55-10-07 of the North Carolina Business
Corporations Act, the undersigned Corporation hereby submits the following
Amended and Restated Articles of Incorporation for filing with the North
Carolina Secretary of State:
1. The name of the Corporation is Fayetteville Motel Enterprises, Inc.
2. The text of the Amended and Restated Articles of Incorporation are
attached hereto as Exhibit "A".
3. The date of adoption of the Amended and Restated Articles of
Incorporation was July 23, 1999.
4. The Amended and Restated Articles of Incorporation were duly adopted
and approved by the sole shareholder and board of directors of the Corporation,
by written consent in lieu of a meeting pursuant to the provisions of Sections
55-7-04 and 55-8-21 of the North Carolina Business Corporation Act. The number
of votes cast was sufficient for approval.
5. These Amended and Restated Articles of Incorporation will be effective
upon filing with the North Carolina Secretary of State.
Dated this 23rd day of July, 1999.
FAYETTEVILLE MOTEL ENTERPRISES, INC.
By: /s/ Thomas S. Gryboski
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Name: Thomas S. Gryboski
Title: Assistant Secretary
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EXHIBIT "A"
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
FAYETTEVILLE MOTEL ENTERPRISES, INC.
ARTICLE I
The name of the Corporation is FAYETTEVILLE MOTEL ENTERPRISES, INC.
ARTICLE II
The registered office of the Corporation is located at 225 Hillsborough
Street, Raleigh, Wake County, North Carolina 27603. The name of its registered
agent at that address is CT Corporation System, Inc.
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 Faytteville, located at 1844
Cedar Creek Road, Fayetteville, North Carolina 28303 (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 North Carolina.
(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
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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 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
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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.
ARTICLE IV
The total number of shares of stock which the Corporation shall have
the authority to issue is One Hundred Thousand (100,000) shares of common stock,
One Dollar ($1.00) par value per share.
ARTICLE V
The number of directors of the Corporation may 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 and qualified is:
Name Address
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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
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 55-8-33 of the North Carolina Business
Corporation Act, or (iv) for any transaction from which the director derived an
improper personal benefit. If the North Carolina 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 each director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the North Carolina Business Corporation Act, 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, I have signed these Amended and Restated
Articles of Incorporation on this 23rd day of July, 1999.
FAYETTEVILLE MOTEL ENTERPRISES, INC.
By: /s/ Thomas S. Gryboski
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Name: Thomas S. Gryboski
Title: Assistant Secretary
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