Exhibit 3.15.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SERVICO FLAGSTAFF, INC.
(AN ARIZONA BUSINESS CORPORATION)
Pursuant to Sections 10-061 and 10-064 of the Arizona General
Corporation Law, SERVICO FLAGSTAFF, INC., an Arizona corporation (the
"Corporation"), hereby certifies that these 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 l0-821 and l0-704 of the Arizona
Business Corporation Act, as of July 23, 1999. The number of outstanding shares
of common stock of the Corporation (and the number of shares entitled to vote
thereon) is 1,000. These Amended Articles correctly set forth the provisions of
the Articles of Incorporation as theretofore amended. These Amended Articles
supercede the original Articles of Incorporation and all amendments thereto.
1. NAME. The name of the Corporation is SERVICO FLAGSTAFF,
INC.
2. PURPOSE.
(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 Howard Johnson Flagstaff, located at
2200 East Butler Avenue, Flagstaff, Arizona 88001 (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 Arizona.
(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. 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
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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 2 and the last sentence of
Article 10 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.
3. INITIAL BUSINESS. The Corporation initially intended to
conduct and currently conducts the business of owning, operating, using and
managing a hotel in the State of Arizona.
4. AUTHORIZED CAPITAL. The Corporation shall have authority to
issue One Thousand (1,000) shares of common stock, one cent ($0.01) par value
per share.
5. KNOWN PLACE OF BUSINESS. (In Arizona)
The street address of the known place of business of
the Corporation is:
c/o CT Corporation System
3325 North Central Avenue
Phoenix, Maricopa County, AZ 85012
6. STATUTORY AGENT. (In Arizona)
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The name and address of the statutory agent of the
Corporation is:
c/o CT Corporation System
3325 North Central Avenue
Phoenix, Maricopa County, AZ 85012
7. BOARD OF DIRECTORS. The Board of Directors of the
Corporation shall consist of at least one (1) director. The number of directors
may be either increased or decreased from time to time as provided for in the
Bylaws of the Corporation, but shall never be less than one. The name and
address of the persons who are to serve as the members of the board of directors
until the annual meeting of shareholders or until their successors are elected
and qualified are:
Robert M. Flanders 3345 Peachtree Road, N.E.
Two Live Oak Center, Suite 700
Atlanta, GA 30326
Mark K. Rafuse 3345 Peachtree Road, N.E.
Two Live Oak Center, Suite 700
Atlanta, GA 30326
Carl E.B. McKenry c/o University of Miami
School of Business
414 Jenkins Bldg.
Coral Gables, Florida 33124-9145
The said Carl E.B. McKenry is identified as the independent
Director. The number of Directors of the Corporation may be changed in
accordance with the By-Laws of the Corporation, but shall be composed of at
least one (1) member.
8. BYLAWS; ELECTION OF DIRECTORS. 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.
9. DIRECTORS' LIABILITY. 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 10-833 of the
Arizona Business Corporations Act, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Arizona Business
Corporation Act is amended after the date of these Amended Articles to authorize
corporate action further limiting or eliminating the personal liability of
directors, then the liability of each director of the Corporation shall be
limited or eliminated to the fullest extent permitted by the Arizona Business
Corporation Act, as so amended.
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The right and authority conferred in this Article 9 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.
10. INDEMNIFICATION. 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 23rd day of July, 1999.
SERVICO FLAGSTAFF, INC.
By: /s/ ROBERT M. FLANDERS
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Name: Robert M. Flanders
Title: President
BY: /s/ THOMAS S. GRYBOSKI
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Name: Thomas S. Gryboski
Title: Assistant Secretary