Exhibit 3.41.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
APICO INNS OF GREEN TREE, INC.
Pursuant to Sections 1914 and 1915 of the Pennsylvania
Business Corporation Law (the "Law"), APICO INNS OF GREEN TREE, INC., an
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 August 2, 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 INNS OF GREEN TREE, INC.
ARTICLE II
The address of the Corporation's registered office is CT
Corporation System, Philadelphia County.
The address of the principal office and the mailing address of the Corporation
is 3445 Peachtree Road, N.E., Two Live Oak Center, Suite 700, Atlanta, GA 30326.
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 Green Tree, located at
401 Holiday Drive, Pittsburgh, Pennsylvania 15220 (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. 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
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 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 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 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 VI
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 VI 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 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.
IN WITNESS WHEREOF, the undersigned has executed these Second
Amended and Restated Articles of Incorporation this ____ day of July, 1999.
APICO INNS OF GREEN TREE, INC.
By: /s/ Thomas S. Gryboski
--------------------------
Name: Tom Gryboski
Title: Assistant Secretary