EXHIBIT 10.8
CAC II SPECIAL GENERAL, INC.
ARTICLES OF INCORPORATION
ARTICLE I
NAME
1. Name. The name of the Corporation is CAC II Special General, Inc.
ARTICLE II
PURPOSE
2. Purpose. Notwithstanding any provision hereof to the contrary, the
following shall govern: The business, operations and purposes of the Corporation
are limited solely to the following:
(a) To serve as the general partner of, and to have a general
partnership interest in, CAC II Limited Partnership, a Virginia limited
partnership (the "Partnership"), in accordance with the provisions hereof and
the Partnership's Limited Partnership Agreement, which by its terms limits the
business of the Partnership to the ownership, operation and management of those
certain parcels of real property listed in Article VIII hereof, together with
all improvements located thereon (collectively, the "Properties"), and limits
the indebtedness of the Partnership to a first lien mortgage on the Properties
arising from financing by First Union National Bank (the "Mortgage"), any other
indebtedness permitted under the Mortgage, and normal trade accounts payable in
the ordinary course of the Partnership's business; and
(b) To exercise all powers that are enumerated in the Virginia
Stock Corporation Act and that are necessary or convenient for the business,
operations or purposes of the Corporation as set forth herein.
ARTICLE III
PROHIBITIONS
3. Certain Prohibited Activities. Notwithstanding any provision hereof to
the contrary, the following shall govern:
(a) For so long as any obligation secured by the Mortgage
remains outstanding and not paid in full, the Corporation's indebtedness shall
consist only of indebtedness it is permitted to have under the Mortgage and
normal trade accounts payable in the ordinary course of business, and the
Corporation shall not cause or permit the Partnership to have any indebtedness
other than the following: (i) the Mortgage, (ii) any other indebtedness the
Partnership is permitted to have under the Mortgage, and (iii) normal trade
accounts payable in the ordinary course of the Partnership's business.
(b) The Corporation shall not consolidate or merge with or
into any other entity, or convey or transfer its properties and assets
substantially as an entirety to any entity, unless:
(i) the entity that is formed upon such
consolidation, that survives such merger (if other than the Corporation), or
that acquires by conveyance or transfer the properties and assets of the
Corporation substantially as an entirety, shall: (A) be organized and existing
under the laws of the United States of America or any State or the District of
Columbia, (B) include in its organizational documents the same limitations set
forth in this Article III and in Article VII (Separateness Covenants), and (C)
expressly assume the due and timely performance of the Corporation's
obligations; and
(ii) immediately after giving effect to such
transaction, no default or event of default will have occurred under any
agreement to which the Corporation is a party.
(c) The Corporation shall not cause or permit the Partnership
to consolidate or merge with or into any other entity, or to convey or transfer
its properties and assets substantially as an entirety to any entity, unless:
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(i) the entity that is formed upon such
consolidation, that survives such merger (if other than the Partnership), or
that acquires by conveyance or transfer the properties and assets of the
Partnership substantially as an entirety, shall: (A) be organized and existing
under the laws of the United States of America or any State or the District of
Columbia, (B) include in its organizational documents the same limitations set
forth in this Article III and in Article VII (Separateness Covenants), and (C)
expressly assume the due and punctual performance of the Partnership's
obligations; and
(ii) immediately after giving effect to such
transaction, no default or event of default will have occurred under any
agreement to which the Partnership is a party.
(d) For so long as any obligation secured by the Mortgage
remains outstanding and not paid in full, the Corporation shall not, without the
unanimous consent of the Board of Directors (i) voluntarily commence a case with
respect to itself, as debtor, under the Federal Bankruptcy Code or any similar
federal or state statute; or (ii) cause or permit the Partnership to voluntarily
commence a case with respect to the Partnership, as debtor, under the Federal
Bankruptcy Code or any similar federal or state statute. For so long as any
obligation secured by the Mortgage remains outstanding and not paid in full, no
material amendment to these Articles of Incorporation or to the Corporation's
Bylaws may be made without the prior approval of the mortgagee holding the
Mortgage, and the Corporation shall not cause or permit any material amendment
to be made to the Partnership's Certificate of Limited Partnership or Limited
Partnership Agreement without the prior approval of the mortgagee holding the
Mortgage.
ARTICLE IV
AUTHORIZED SHARES
4.1. Number and Designation. The number of shares the Corporation is
authorized to issue is set forth below, together with the designation thereof
and the par value per share:
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Number of Shares Class Designation Par Value Per Share
---------------- ----------------- -------------------
5,000 Common no par value
4.2 Preemptive Rights. No holder of outstanding shares shall have any
preemptive right with respect to: (a) any shares of any class of the
Corporation, whether now or hereafter authorized; (b) any warrants, rights or
options to purchase any such shares; or (c) any obligations convertible into any
such shares or into warrants, rights or options to purchase any such shares.
4.3 Voting and Distributions. The holders of the Common Shares shall have
unlimited voting rights and shall be entitled to receive the net assets of the
Corporation upon the liquidation of the Corporation, its dissolution or the
winding up of its affairs.
ARTICLE V
INITIAL REGISTERED OFFICE AND AGENT
5.1 Initial Registered Office. The initial registered office of the
Corporation is located in the City of Richmond, Virginia, at the following
address:
McGuireWoods LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219
5.2 Initial Registered Agent. The initial registered agent of the
Corporation is Martin B. Richards, Esquire, whose business office is identical
with the initial registered office and who is a resident of Virginia and a
member of the Virginia State Bar.
ARTICLE VI
LIMIT ON LIABILITY AND INDEMNIFICATION
6.1 Limit on Liability. To the maximum extent that the Virginia Stock
Corporation Act, as it exists on the date hereof or may hereafter be amended,
permits elimination of, or limitations upon, the liability of a director or
officer of a corporation, the directors and officers of
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the Corporation shall have, as applicable, no liability or limited liability to
the Corporation or its shareholders.
6.2 Indemnification, Advancement of Expenses and Related Matters.
(a) The Corporation, in accordance with the mandatory
indemnification provisions of the Virginia Stock Corporation Act, shall
indemnify a director who entirely prevails in the defense of any proceeding to
which he was a party because he is or was a director of the Corporation against
reasonable expenses incurred by him in connection with the proceeding. An
officer of the Corporation shall be entitled to such mandatory indemnification
to the same extent as a director.
(b) In addition to any mandatory indemnification, the
Corporation shall provide the maximum indemnification permitted by law to any
director, officer, employee or agent of the Corporation in connection with any
proceeding (including any proceeding by or in the right of the Corporation) that
is brought against such person and that is based on the actions taken or not
taken by such person on behalf of the Corporation, or on the status of such
person as a director, officer, employee or agent of the Corporation, except to
the extent that such person has engaged in (i) willful misconduct, or (ii) a
knowing violation of the criminal law.
(c) The provisions of this Article shall not be deemed to
prevent, deny or limit (i) the indemnification or insurance permitted under
applicable law to the directors, officers, employees or agents of the
Corporation, or (ii) the authority of the Corporation under applicable law to
advance, reimburse or pay expenses for the benefit of any director, officer,
employee or agent.
(d) The determination of whether the Corporation is required
or permitted, in a particular case, to indemnify a director, officer, employee
or agent (or to provide such person with related advances, reimbursements or
other payments of expenses) shall be conducted in accordance with Section
13.1-701 of the Virginia Stock Corporation Act, or any successor provision.
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6.3 Mandatory Subordination. Notwithstanding any provision hereof to
the contrary, the following shall govern: Any indemnification shall be fully
subordinated to any obligations of the Corporation in regard to the Properties
and shall not constitute a claim against the Corporation in the event that cash
flow is insufficient to pay such obligations.
6.4 Amendments. No amendment, modification or repeal of this Article
shall diminish the rights provided hereunder to any person arising from conduct
or events occurring before the adoption of such amendment, modification or
repeal.
ARTICLE VII
SEPARATENESS COVENANTS
7.1 Separateness Covenants. Notwithstanding any provision hereof to the
contrary, the following shall govern: For so long as any obligation secured by
the Mortgage remains outstanding and not paid in full, in order to preserve and
ensure the Corporation's separate and distinct corporate identity, in addition
to the other provisions set forth in these Articles of Incorporation, the
Corporation shall conduct its affairs in accordance with the following
provisions:
(a) It shall establish and maintain an office through which
its business shall be conducted separate and apart from those of its parent and
any affiliate and it shall allocate fairly and reasonably any overhead for
shared office space.
(b) It shall maintain separate corporate records and books of
account from those of its parent and any affiliate.
(c) Its Board of Directors shall hold appropriate meetings,
or act by unanimous consent, to authorize all appropriate corporate actions and
shall observe all corporate formalities in authorizing such actions.
(d) It shall not commingle assets with those of its parent or
any affiliate.
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(e) It shall conduct its own business in its own name.
(f) It shall maintain financial statements separate from its
parent and any affiliate.
(g) It shall pay any liabilities out of its own funds,
including salaries of any employees, rather than funds of its parent or any
affiliate.
(h) It shall maintain an arm's length relationship with its
parent and any affiliate.
(i) It shall not guarantee or become obligated for the debts
of any other person or entity (including, without limitation, its parent or any
affiliate) and shall not hold out its credit as being available to satisfy the
obligations of others.
(j) It shall use stationery, invoices and checks separate
from its parent and any affiliate.
(k) It shall not pledge its assets for the benefit of any
other person or entity (including, without limitation, its parent or any
affiliate).
(l) It shall hold itself out as an entity separate from its
parent and any affiliate.
(m) It shall not make any loans or advances to any third
party (including, without limitation, any affiliate).
(n) It shall comply with its obligations under the agreements
and instruments evidencing the Mortgage.
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7.2 Definitions. For purpose of this Article VII, the following terms shall
have the indicated meanings:
(a) "affiliate" means, with respect to a specified person or
entity:
(i) any person or entity directly or indirectly
owning, controlling or holding, with power to vote, ten percent (10%) or more of
the outstanding voting securities or interests of the specified entity;
(ii) any person or entity ten percent (10%) or more
of whose outstanding voting securities are directly or indirectly owned,
controlled or held, with power to vote, by the specified person or entity;
(iii) any person or entity directly or indirectly
controlling, controlled by or under common control with the specified person or
entity;
(iv) any officer, director or partner of the
specified person or entity;
(v) if the specified person or entity is an officer,
director or partner, any company for which the specified person or entity acts
in any such capacity; and
(vi) any close relative or spouse of the specified
person.
(b) "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person or entity, whether through ownership of voting securities, by contract or
otherwise.
(c) "parent" means, with respect to a corporation, any other
corporation owning or controlling, directly or indirectly, fifty percent (50%)
or more of the voting shares of such corporation.
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(d) "person or entity" includes any individual, corporation,
partnership, limited liability company, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated organization,
government or any agency or political subdivision thereof.
7.3 Actions with Respect to Partnership. For so long as any obligation
secured by the Mortgage remains outstanding and not paid in full, the
Corporation shall cause the Partnership's Limited Partnership Agreement to
include separateness covenants with regard to the Partnership that are the same
in all material respects as the separateness covenants contained herein with
regard to the Corporation.
ARTICLE VIII
LIST OF PROPERTIES
8.1 The Properties consist of those real properties, together with all
improvements thereon, that are located at the following addresses (and that are
more fully described in agreements and instruments evidencing the Mortgage):
Canyon Hills
6307 Bluff Springs Road
Austin, Texas 78744
Park Village
2401 L. Don Dodson Drive
Bedford, Texas 76021
Summer Tree
13250 Emily Road
Dallas, Texas 75240
The Courts on Pear Ridge
5050 Pear Ridge Road
Dallas, Texas 75287
Dated: March 5, 2001
By: /s/ William D. James
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William D. James, Incorporator
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