Exhibit 3.46.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PALM BEACH MOTEL ENTERPRISES, INC. (AS AMENDED)
Pursuant to Sections 607.1006 and 607.1007 of the Florida General
Corporation Act (the "Act"), PALM BEACH MOTEL ENTERPRISES, INC. a Florida
corporation (the "Corporation"), hereby executes and submits for filing with the
Department of State, State of Florida, these Second Amended and Restated
Articles of Incorporation (the "Amended Articles"), to read as follows:
ARTICLE I
The name of the Corporation is PALM BEACH MOTEL ENTERPRISES,
INC.
ARTICLE II
(a) The purpose for which the Corporation is organized is limited to
acting as a general partner of Servico Centre Associates, Ltd., a Florida
limited partnership (the "Partnership"), which shall include: (i) owning and
holding partnership interests in the Partnership pursuant to the terms and
conditions of the Second Amended and Restated Agreement of Limited Partnership
of the Partnership, as may be amended from time to time (the "Partnership
Agreement"); (ii) operating, using and managing, as general partner of the
Partnership, that certain real property owned by the Partnership commonly known
as Omni Hotel West Palm Beach, 1601 Belvedere Road, West Palm Beach, Florida
33406 (the "Property"); (iii) entering into and performing its obligations on
its own behalf and on behalf of the Partnership 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"); (iv) entering into and performing its
obligations on its own behalf and on behalf of the Partnership 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 (v) transacting any and all lawful business that is incident and
necessary or appropriate to the ownership of a partnership interest in the
Partnership and to the management
of the Property for which a corporation may be incorporated under the laws of
the State of Florida.
(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) withdraw as general partner from the
Partnership; or (ii) file, or cause the Partnership to file a voluntary
petition or otherwise initiate, or consent to, or cause the Partnership to
initiate or consent to, proceedings for the Corporation or the Partnership 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 (iii) file, or cause the Partnership to file, any petition, or consent or
to cause the Partnership to 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 (iv) seek or consent
to the appointment of any trustee, receiver, conservator, assignee,
sequestrator, custodian, or liquidator (or other similar official) of the
Corporation or the Partnership or of all or any substantial part of the
properties and assets of the Corporation or the Partnership; or (v) make, or
cause the Partnership to make, any general assignment for the benefit of
creditors; or (vi) admit in writing or cause the Partnership to admit in
writing, its inability to pay its debts generally as they become due; or
(viii) declare or effect, or cause the Partnership to declare or effect, a
moratorium on its debt or take any corporate action, or cause the Partnership
to take any partnership 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,
the Partnership 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, the Partnership 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 the Partnership; 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 or the Partnership. 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.
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(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, and
shall cause the Partnership to, (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 or Partnership, as applicable, 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, and
shall not permit the Partnership to, (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 II 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 cause the
Partnership to dissolve, wind up or liquidate, in whole or in part, or cause the
Partnership to consolidate or merge with or into any other entity, or cause the
Partnership to convey, sell 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, or cause the
Partnership to engage in any business or activity other than as set forth in
these Partnership Agreement. 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 or
distributions from the Partnership to its partners, as applicable.
ARTICLE III
The total number of shares of stock which may be issued by the
Corporation is Sixty (60) shares of Common Stock, each of which to be without
par value.
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ARTICLE IV
The Corporation is to have perpetual existence.
ARTICLE V
The post office address of the registered office of the Corporation
shall be c/o CT Corporation System, 1200 South Pine Island Road, Suite 250, City
of Plantation, Florida 33324, and the name of the registered agent of the
Corporation at that address is CT Corporation System.
ARTICLE VI
The number of directors of the Corporation shall be at least One (1),
which may be changed in accordance with the Bylaws of the Corporation.
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.
The foregoing Second Amended and Restated Articles of Incorporation
were duly adopted and approved by the sole shareholder and the Board of
Directors of the Corporation by unanimous written consent in lieu of a meeting,
pursuant to Sections 607.0704 and 607.0821 of the Florida General Corporation
Act, as of July 23, 1999. The number of votes cast was sufficient for approval.
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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.
PALM BEACH MOTEL ENTERPRISES, INC.
By:/s/ THOMAS S. GRYBOSKI
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Name: Thomas S. Gryboski
Title: Assistant Secretary