Exhibit 3.42.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SERVICO HILTON HEAD, INC.
Pursuant to Sections 33-10-106 and 33-10-107 of the South Carolina
Business Corporation Act (the "Act"), SERVICO HILTON HEAD, INC., a South
Carolina 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 33-7-104
and 33-8-210 of the Act, as of July ___, 1999. The number of outstanding shares
of common stock of the Corporation is 1,000, and the number of votes cast was
sufficient for approval. The original Articles of Incorporation were filed with
the Secretary of State of the State of South Carolina on May 16, 1996. 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 amendments adopted by the Corporation, set
forth in full, are as follows:
ARTICLE I
(a) The name of the Corporation is SERVICO HILTON HEAD, INC.
ARTICLE II
The Corporation's registered office is c/o CT Corporation System, 75
Beattle Place, Two Insignia Financial Plaza, Greenville, South Carolina, 29601,
and the name of its registered agent at that office is CT Corporation System.
ARTICLE III
The Corporation is authorized to issue a single class of shares; the
total number od shares authorized is One Thousand (1,000) shares of common
stock, $0.01 par value.
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 Four Points Hotel Hilton Head, located at 36
South Forest Beach Drive, Hilton Head, South Carolina 29938 (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 South 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 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
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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 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.
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ARTICLE V
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 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, or (iii) for any transaction from which the director derived
an improper personal benefit. If the South 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 a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the South Carolina Business Corporation Act, 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.
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IN WITNESS WHEREOF, the undersigned has executed these Second Amended
and Restated Articles of Incorporation this ____ day of July, 1999.
SERVICO HILTON HEAD, INC.
By: /s/ Thomas S. Gryboski
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Name: Tom Gyboski
Title: Assistant Secretary