Exhibit 3.40.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
APICO HILLS, INC.
Pursuant to Sections 1914 and 1915 of the Pennsylvania
Business Corporation Law (the "Law"), APICO HILLS, INC., a Pennsylvania
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 1766 and 1727(b) of the
Law, as of July 22, 1999. The number of votes cast was sufficient for approval.
The original Articles of Incorporation were filed with the Department of State
of the State of Pennsylvania on April 17, 1972, pursuant to P.L. 364 (15 P.S.
Section 1307), as amended. These Amended Articles supersede the original
Articles of Incorporation and all amendments thereto and shall be effective upon
filing these Amended Articles with the Department of State. The amendment
adopted by the Corporation, set forth in full, is as follows:
ARTICLE I
The name of the Corporation is APICO HILLS, INC.
ARTICLE II
The address of the Corporation's registered office is CT
Corporation System, Philadelphia County.
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 Parkway East, located at
915 Brinton Road, Pittsburgh, Pennsylvania 15221 (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 Pennsylvania.
(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. Section Section 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.
(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 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 until
a successor is elected and qualified is:
Name Address
---- -------
Robert Flanders 3445 Peachtree Road, N.E.
Two Live Oak Center, Suite 700
Atlanta, Georgia 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, (iii) under Section 513 of the Pennsylvania Business
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Pennsylvania Business 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.
IN WITNESS WHEREOF, the undersigned has executed these Second
Amended and Restated Articles of Incorporation this ____ day of July, 1999.
APICO HILLS, INC.
By: /s/ Thomas S. Gryboski
--------------------------
Name: Tom Gyboski
Title: Assistant Secretary