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HomeMy WebLinkAboutResolution 2825A Resolution NO ~~~ APPROVING RESTATED ARTICLES OF ORGANIZATION AND FIRST AMENDED AND RESTATED„REGULATIONS OF THE VILLAS OF EASTWOOD TERRACE, LLC WHEREAS, The Villas of Eastwood Terrace, LLC (the `Company") is a Texas luiuted liability company the sole member of which is the Fort Worth Housing Finance Corporation, a corporation organized under Section 394 of the Texas Local Government Code (the `Member")• WHEREAS, the Company is formed for the purpose of furthering the public purpose of its Member for the benefit of the City of Fort Worth (the `City"), and particulazly is organized to provide decent, safe and affordable housing to very low-income, low-income and moderate income residents of the City by developing, owning, leasing, operating, renovating, financing and disposing of the Eastwood Terrace senior housing project at the corner of Berry and Mt. Castle Streets in the City of Fort Worth, Texas (the `Prod ect"), WHEREAS, the Company seeks to revise its Articles of Organization and Regulations so as to grant the City direct control over the Company's governance NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS Section 1 That the City Council of the City has found and determined, and does hereby find and determine, that rt is necessary and advisable for the City to acquire and maintain control over the Company Section 2. That the City Council of the City hereby approves the form of Restated Articles of Organization of the Company a copy of which is attached hereto as Exhibit A, and the form of First Amended and Restated Regulations of the Company a copy of which is attached hereto as Exhibit `B each which grant the City the power to appoint the Managers of the Company and the power of final approval with respect to any amendment, alteration or repeal to the Company's Articles of Organization and Regulations. Section 3 That rt is hereby officially found and determined that said meeting was open to the public as required by law• and that public notice of the tune, place and purpose of said meeting was given as required by Chapter 551 of the Texas Government Code Section 4 All .Resolutions and parts thereof in conflict herewith aze expressly repealed insofar as they conflict herewith. Section 5 That this Resolution shall take effect unmediately from and after its adoption and publication in accordance with the law and it is accordingly so resolved. EXHIBIT A RESTATED ARTICLES OF ORGANIZATION OF THE 'VILLAS OF EASTWOOD TERRACE, LLC The undersigned Managers of The Villas of Eastwood Terrace, LLC, a Texas limited liability company (the `Company"), acting pursuant to Article 3 09 of the Texas Lunited Liability Company Act (the Act's, hereby adopt Restated Articles of Organization. 1 The name of the Company is THE VILLAS OF EASTWOOD TERRACE, LLC. 2. The Company hereby adopts Restated Articles of Organization that accurately copy the Articles of Organization and all amendments thereto that are ui effect to date and as further amended by such Restated Articles of Organization as heremafCer set forth and which contain no other change m any other provision thereof. 3 The Articles of Organization of the Company including all amendments thereto tb:at are m effect to date, are amended by the Restated Articles of Organization as follows. (a) Article Two is amended to add the clause except as otherwise provided under the Act or in the Company's Regulations, (b) Article Three is amended to slrghtly modify its text; (c) Article Four is amended by substituting `current" iri replacement of each reference to `initial, (d) Article Five is amended to set forth that the Managers of the Company shall be appointed by the City Council of the City of Fort Worth and to identify the current Managers of the Company- (e) Article Six is amended to set forth that any alteration, amendment or repeal of any provision of the Articles of Organization and the Regulations of the Company must be approved by City Council of the City of Fort Worth, (f) Article Eight is deleted m its entirety- (g) Article Nine is amended by transfemng its old text to new Article Eight and by amending that text; that text is amended by identifyuig the current Member of the Company and by setting forth that the powers and privileges of the Member shall be determined according to the Regulations of the Company (h) Article Ten is amended by transfemng its old text to new Article Nine and by amending that text; that text is amended by clarifying the Company's dissolution •~ procedure; 1T~EVTf T.LS (i) New Article Ten is added to set forth requirements of The Department of Housing and Urban Development ("HUD") which are unposed on an entity receiving a HUD-insure mortgage loan, and (j) New Article Eleven is added to set forth that the form of these Articles of Orgamzation has been approved by the City Council of the City of Fort Worth. 4 Each such amendment made by the Restated Articles of Organization was approved on the day of , 2002, by a ma~onty of the Managers in accordance with Section H of Article 2.23 of the Act or as otherwise provided in the Articles of Organzation or Regulations, and all persons approving the amendments have signed these Restated Articles of Orgamzahon. 5 The Articles of Organization of the Company and all amendments and supplements thereto are hereby superseded by the following Restated Articles of Organization which accurately copy the entire text thereof and the new amendments set forth above. ARTICLE ONE The name of the Company is THE VII.,LAS OF EASTWOOD TERRACE, LLC ARTICLE TWO The period of duration of the Company is perpetual except as otherwise provided under the Act or the Company's Regulations. ARTICLE THREE The purpose for which the Company is orgamzed is to provide decent, safe and affcsrdable housing to very low-uncome, low income, and moderate income residents of the City of Fort Worth (the `City') by developing, owning, leasing, operating, renovating, financing and disposing of the Eastwood Terrace semor housing project at the corner of Berry and Mt. Castle Streets m the City of Fort Worth, Texas (the `Project") and doing all things incident to the ownership of the Project. In addition to the foregoing, the Company is formed for the purpose of furthering the public purpose of rts Member for the benefit of the City ARTICLE FOUR The address of the current registered office of the Company in the State of Texas is 1400 Throckmorton Street, Fort Worth, Texas 76102, and the name of its current registered agent at such address is Jerome C. Walker ARTICLE FIVE The powers of the Company shall be exercised by or under the authority of, and the busuness and affairs of the Company shall be managed undez the direction of one or more managers (referred to herein in the singular as `Manager and in the plural as `Managers"), each TTY vu,c.as of whom shall be appointed by the City Council of the City The number and the classifications and quahfications of Managers shall be fixed from tune to tune by or in accordance with the Regulations. The names and addresses of the persons who serve as the current Managers of the Company are. NAME TITLE ADDRESS Ralph McCloud President of 1000 Throckmorton Street Fort VWorth Housing Fort Worth, Texas 76102 Finance Corporation Joe Pamagua Assistant City Manager of 1000 Throckmorton Street the City of Fort Worth over Fort Worth, Texas 76102 the Housing Department Jerome C, Walker Director of the City of h 000 Throckmorton Street Fort Worth Housing Fort Worth, Texas 76102 Department ARTICLE SIX These Articles of Organization and the Regulations of the Company may not be altered, amended or repealed unless approved by the City Council of the City Any amendments to the i Company's Articles of Organization and Regulations shall be consistent with the public purpose of the Company's Member and all statutes related thereto including but not lunited to, the Texas Housing Finance Corporations Act. ARTICLE SEVEN The Company shall have the power and authority to indemnify any person to the fullest extent permitted by law ARTICLE EIGHT The Company shall have one member ("Member") which shall be a governmental unit or instrumentality The Regulations of the Company shall define the powers and privileges of the Member The current Member of the Company is the Fort Worth Housing Finance Corporation. The Member of the Company shall not be permitted to directly or indirectly transfer its membership interests to an entity which is not a governmental unit or instrumentality In the event that the Member ceases to be a governmental unit or instrumentality such Member shall be required to transfer its membership interest in the Company to a governmental unit or mstnimentahty for an amount equal to the book value of such membership interest. Such transfer shall occur within ninety (90) days following the date that the Member ceased to be a governmental unit or instrumentality The Member of the Company shall be required to enforce its rights in the Company in a vigorous and expeditious manner including, but not luruted to . pursuing all legal and equitable remedies necessary to protect its interest in the Company ~ vTf T AC ARTICLE 1VTNE In the event of the dissolution of the Company the Managers, after paying or making provision for payment of all of the liabilities of the Company in accordance with any pnor legal agreements covering assets, shall distribute, all of the assets to the Company's Member provided, however, that such assets shall continue to be devoted to the public purpose of providing affordable housing in accordance with the Texas Housing Finance Corporations Act, or any successor statute thereto ARTICLE TEN (1) So long as the Secretary of The Department of Housing and Urban Development ("HUD") or the Secretary's successors or assigns is the insurer or holder of the note secured by the deed of trust on the Project, no amendment to the Articles of Organization that results in any of the following will have any force or effect without the pnor written consent of the Secretary• (a) Any amendment that modifies the term of the Company (b) Any amendment that activates the requirement that a HUD previous participation certification be obtained from any additional Manager (c} Any amendment that in any way affects the note, deed of trust or security agreement on the Project or the regulatory agreement ("Regulatory Agreement") between HUD and the Company and (d) Any amendment that would authorize any Manager other than the Managers authorized by the Articles of Organization, at the tune of the loan to bind the Company for all matters concerning the Project which require HUD s consent or approval, (e) A change in the Managers, or (f) Any change in the guarantor of any obligation to the Secretary (2) The Company is authorized to execute a note, deed of trust and security agreement m order to secure a loan to be insured by the Secretary and to execute the Regulatory Agreement and other documents required by the Secretary in connection with the HUD-insured loan. (3} Notwithstanding any other provisions of these Articles of Organization, upon any dissolution, no title or right to possession and control of the Project, and no right to collect the rents from the Project, shall pass to any person who is not bound by the Regulatory Agreement in a manner satisfactory to the Secretary (4) Notwithstanding any other provisions of these Articles of Organization, in the . event that any provision of these Articles conflicts with the Regulatory Agreement, the provisions of the Regulatory Agreement shall control. TxE v~.tns (5) So long as the Secretary or the Secretary's successors or assigns, is the insurer or • holder of the note on the Project, the Company may not voluntarily be dissolved without the prior written approval of the Secretary (6) The Managers, and any assignee of the Mangers, agree to be liable in their individual capacities to HUD with respect to the following matters (a) For funds or property of the Prod ect coming into then hands, which by the provisions of the Regulatory Agreement, the Company is not entitled to retain, and (b) For their own acts and deeds, or acts and deeds of others which they have authorized, in violation of the provisions of the Regulatory Agreement. (7) Nothing contained in these Articles of Organization shall permit the distribution of any surplus cash (as defined in the Regulatory Agreement) to the Managers in violation of the Regulatory Agreement, or in violation of HUD regulations. (8) Any Manager acquiring a position anew must meet the applicable requirements for HUD previous participation clearance. (9) The Company designates Jerome C. Walker as the official representative for ali matters concerning the Prod ect which require HUD consent or approval, and the signature of this person shall bind the Company as mortgagor in all such matters: (10) Article Five identifies where a Manager is vested with management authority in any project matters other than noted in Paragraph (1) of this Article Ten, and identifies such management authority and Manager (11) The Company as mortgagor may from tune to time appoint a new representative to perform such functions, but within three (3) business days of do so, shall provide HUD with written notification of the name, address and telephone number of its new representative. (12) Notwithstanding the provisions of Article Nine, the Company shall not voluntarily be dissolved pnor to the maturity date of the note. (13) Except as amended hereby all terms, conditions and provisions of these Articles of Organization remain in full force and effect as originally written, and the Company shall continue in existence pursuant thereto as amended hereby ARTICLE ELEVEN A resolution approving the form of these Articles of Organization has been adopted by the City Council of the City on the day of , 2002. • ~vTfiAC SIGNED to be effective as of the da of Y `_, 2002. THE VII.LAS OF EASTWOOD TERRACE, LLC, a Texas hrruted habihty company • .~-y. _~ ,{ !~ ~.'~-.~.~,' ~ai TrIE VII I,A$ EXHIBIT B FIItST AMENDED AND RESTATED REGULATIONS OF THE VILLAS OF EASTWOOD TERRACE, LLC THESE FIRST AMENDED AND RESTATED REGULATIONS OF THE VILLAS OF EASTWOOD TERRACE, LLC (these `Regulations"), are hereby duly adopted effective as of the of , 2002 ("Effectrve Date's by Ralph McCloud, Joe Pamagua, and Jerome C Walker, as the current Managers of the Company and are hereby ratrfied; confirmed.and approved as such by the Fort Worth Housing Finance Corporation, a corporation organized under Sectron 394 of the Texas Local Government Code, as its sole Member ARTICLE I DEFINITIONS 1 O1 Definitions. The following terms used in these Regulations shall have the following meanings (unless otherwise expressly provided herein) Act" means the Texas Lumted Liability Company Act and any successor statute, as amended from tune to tune. Affiliate" means any Person that controls, is controlled by or under common control with another Person. `Capital Contribution means any contribution by the Member to the capital of the Company `Code means the Internal Revenue Code of 1986 and any successor statute, as amended from tune to tune. `Company" means The Villas of Eastwood Terrace, LLC, a Texas limited liability company `Lender" means any party providing debt financing to the Company "Manager" means a person serving on the Company's Board of Managers in accordance vcnth Section 5.01 `Member" means any Person executing these Regulatrons as of the date of these Regulations as a Member of the Company "Membership Interest" means the interest of the Member in the Company Eastwood Teaace 1 including, without hmrtatron, nghts to distributions (hqurdahng or otherwise), allocatrons, information, and to consent or approve. "Person has the meaning given that term in Article 1 02(A)(4) of the Act. "Proceeding" has the meaning given that term in Section 6.01 `Regulations" has the meaning given that term in the introductory paragraph. `YWCA means the Texas Business Corporation Act and any successor statute, as amended, from tune to tune. Other terms defined herein have the meanings so given them. 1 02 Constructron. Whenever the context requires, the gender of all words used in these Regulations includes the mascuhne, feminine, and neuter All references to Articles and Sectrons refer to articles and sections of these Regulations. ARTICLE II ORGANIZATION 2.01 Formatron. The Company has been organized as a Texas hmrted habihty company by the fihng of Articles of Organization under and pursuant to the Act and the issuance of a certificate of organization for the Company by the Secretary of State of Texas. The Fort Worth Housing Finance Corporation shall be the sole Member of the Company 2.02 Name. The name of the Company rs `The Villas of Eastwood Terrace, LLC" and all Company business must be conducted in that name or such other names that comply with applicable law as the Managers may select from tune to tune. 2.03 Re~stered Office; Re~stered A.uent;_Pnncrpal Office in the United States, Other Offices. The registered office of the Company required by the Act to be maintained in the State of Texas shall be the office of the current registered agent named in the Articles of Organization or such other office (which need not be a place of business of the Company) as the Managers may designate from tune to tune in the manner provided by law The registered agent of the Company in the State of Texas shall be the current registered agent named in the Articles of Organization or such other Person or Persons as the Managers may designate from tune to tune m the manner provided by law The principal office of the Company in the United States shall be at such place as the Managers may designate from tune to tune, which need not be in the State of Texas, and the Company shall maintain records there as required by Article 2.22 of the Act and shall keep the street address of such principal office as the registered office of the Company in the State of Texas. The Company may have such other offices as the Managers may designate from time to tune. 2.04 Pumose. The purpose for which the Company is organized is to provide decent, safe, and affordable housing to very low income, low income, and moderate income residents of the Eastwood Terrace 2 City of Fort Worth (the `City") by developing, owning, leasing, operating, renovating, financing and disposing of the Eastwood Terrace senior housing project at the corner of Berry and Mt. Castle Streets in the City of Fort Worth, Texas (the "Prod ect") and doing all things incident to the ownership of the Project. In addition to the foregoing, the Company is formed for the purpose of furthering the public purpose of its Member for the benefit of the City 2.05 Duration. The penod of duration of the Company is perpetual, unless the Company dissolves in accordance with the provisions of these Regulations. 2.06 Liability to Third Parties. The Member shall not be liable for the .debts, obhgatrons or liabilities of the Company including under a judgment decree or order of a court. 2.07 Withdrawal. The Member may not withdraw from the Company without the consent of the Lenders. ARTICLE III CAPITAL CONTRIBUTIONS 3 O1 Initial Contributions. The Member has made a Capital Contribution of One Thousand Dollars ($1,000) to the Company 3 02 Subsequent Contributions. The Member shall not be required to make any additional contributions to the capital of the Company 3 03 Advances by the Member If the Company does not have sufficient cash to pay its obligations, the Member may advance all or part of the needed funds to or cin behalf of the Company An advance described in this Section constitutes a loan from the Member to the Company bears interest at a rate equal to the prime rate published in the Wall Street Journal on the date of such loan from the date of the advance until the date of payment, and is not a Capital Contribution. ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS 4 O1 Allocations. All items of income, gain, loss, deduction, and creiht of the Company shall be allocated to the Member 4 02 Distributions. Subs ect to the lunitations of Article 5 09A of the Act, from time to time the Company shall make a distribution of cash or other property to the Member From tune to time the Company may also distribute property other than cash to the Member which distribution may be made subject to existing liabilities and obligations. Eastwood Terrace ARTICLE V MANAGEMENT 5 O1 Manaeement of Business, the Board of Managers. The business and property of the Company shall be managed by the Board of Managers, and subject to the restnctions unposed by law the Articles of Orgamzation, or these Regulations;. the Board of Managers may exercise all the powers of the Company 5 02 Number; Appointment; Term. The number of Managers which shall constitute the Board of Managers shall be three. The Board of Managers shall be appointed by the City Council of the City Ideally though rt is not required, the Board of Managers should be composed of the following individuals the President of the Fort Worth Housing Finance Corporation, the Assistant City Manager for the City of Fort Wortli over the Department of Housing, and the Director of the City of Fort Worth Housing Department. Each Manager shall serve until his successor is appointed by the City Council of the City Any Manager may be removed at any tune, with or without cause, by the City Council of.the City 5 03 Resi~iiation, Vacancy Any Manager may resign at any time. Such resignation shall be made in wasting and shall take effect at the time specified therein or if no time is specified therein, at the tune of its receipt by the remaining Managers. The acceptance of a resignation shall not be necessary to make rt effective, unless so expressly provided in the resignation. Any Manager position to be filled by reason of any vacancy occurring in the Managers shall be filled by the City Council of the City 5 04 Place of Meetings. The Board of Managers may hold its meetings and may have an office and keep the books of the Company except as otherwise provided by law in such place or places within or without the State of Texas as the Board of Managers may from tune to tune determine. 5 OS Re~iilar Meetings. Regular meetings of the Board of Managers may be held without notice at such times and places as maybe designated from time to time by resolution of the Board of Managers and communicated to all Managers. 5 06 Special Meetings, Notice. Special meetings of the Board of Managers shall be held whenever called by any Manager The person calling any special meeting shall cause notice of such special meeting, including therein the time and place of such special meeting, to be given to each Manager at least two days before such special meeting. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Managers need be specified in the notice or waiver of notice of any special meeting. 5 07 4uonim, Ma~onty Vote. At all meetings of the Board of Managers, a ma~onty of the Managers shall constitute a quorum for the transaction of business. If a quorum is not present at a meeting, a ma~onty of the Managers present may adjourn the meeting from tune to time, without notice other than an announcement at the meeting, until a quorum is present. The act of a ma~onty of the Managers present at a meeting at which a quorum is in attendance shall • be the act of the Board of Managers, unless the act of a greater number is required by law the Articles of Organization, or these Regulations. Eastwood Terrace 4 5 08 Procedure; Minutes. At meetings of the Board of Managers, business shall be transacted in such order as the Board of Managers may detertrune from tune to tune. The Board of Managers shall appoint at each meetrng a person to preside at the meeting and a person to act as secretary of the meeting. The secretary of the meeting shall prepare minutes of the meeting which shall be delivered to the Secretary of the Company for placement m the minute books of the Company 5 09 Presumption of Assent. A Manager of the Company who is present at any meeting of the Board of Managers at wYuch action on any matter is taken shall be presumed to have assented to the action unless tins dissent shall be entered in the minutes of the meeting or unless he shall file lus written dissent to such action vvrth the person acting as secretary of the meeting before the adjournment thereof or shall forward any dissent by certified or registered mail to the Secretary of the Company immediately after the adjournment of the meetung. Such right to dissent shall not apply to a Manager who voted in favor of such action. 5 10 Officers. The Managers may from tune to tune, designate one or more Persons to be officers of the Company Any officers so designated shall have such authority and perform such dunes as the Managers may from tune to tune, delegate to them. The Managers may assign trtles to partncular officers. Unless the Managers decide otherwise, if the trtle is one commonly used for officers of a business corporation formed under the TBCA, the assignment of such trtle shall constitute the delegation to such officer of the authority and dunes that are. normally associated with that office, subject to any specific delegation of authority and duties made to such officer by the Member pursuant to thus Section 5.10 Each officer shall hold office until lus successor shall be duly designated and shall qualify or until 1us death or until he shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same Person. The salaries or other compensation, if any of the officers and agents of the Company shall be fixed from tune to tune by the Managers. Any officer may resign as such at any tune. Such resignatron shall be made in writing and shall take effect at the tune specified therein, or if no tune be specified, at the tune of rts receipt by the Board of Managers. The acceptance of a resignation shall not be necessary to make rt effectrve, unless expressly so provided m the resignation. Any officer maybe removed as such, either with or without cause, by the Board of Managers whenever in its judgment the best interests of the Company will be served thereby rovide however, that such removal shall be without pre~udlce to the contract rights, if any of the Person so removed. Designatron of an officer shall not of itself create contract rights. Any vacancy occurring in any office of the Company may be filled by the Board of Managers. ARTICLE VI INDEMNIFICATION 6 O1 Ri~1nt to Indemmficatron. Subject to the linutatrons and conchtions as provided m this Artncle VI, each Person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, admuustrative, arbrtratrve or investrgatrve (hereinafter a `Proceeding"), or any appeal m such a Proceeding or any inquuy or investrgatron that could lead to such a Proceeding, by reason of the fact that he, she, or a Person of whom he or she is the legal representative, is or was the Member or a Manager of the Company shall be indemnified by the Company to the fullest extent perrrutted by Eastwood Terrace 5 the Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to .provide broader indemmficatron nghts than said law permitted the Company to provide pnor to such amendment) against judgments, penalties (including excise and sunilar taxes and punitive damages), fines, settlements and reasonable expenses (including, without hrrutatron, attorneys fees) actually incurred by such Person in connection with such Proceeding, and indemmficatron under this Article VI shall continue as to a Person who has ceased to serve in the capacity which uutrally entrtled such Person to indemnity hereunder The nghts granted pursuant to this Article VI shall be deemed contract nghts, and no amendment, modification or repeal of this Article VI shall have the effect of limiting or denying any such nghts with respect to actions taken or Proceedings ansing pnor to any such amendment, modification or repeal. It is expressly acknowledged that the indemnification provided m this Article VI could involve mdemmficatron for negligence or under theones of stnct liability 6 02 Advance Pa ice. The nght to mdemmficahon conferred m this Article VI shall include the nght to be paid or reunbursed by the Company .the reasonable expenses incurred by a Person of the type entrtled to be indemnified under Section 6.01 who was, is or is threatened to be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determinatron as to the Persons ultimate entitlement to indeinmfication, provided, however, that the payment of such expenses incurred by any such Person in advance of the final disposition of a Proceeding, shall be made only upon delivery to the Company of a wntten affinnatron by the Person of 1us or her good faith belief that he or she has met the standard of conduct necessary for mdemmficatron under this Article VI and a wntten undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultunately be determined that such indemnified Person is not entrtled to be indemnified under this Article VI or otherwise. 6 03 Indemnification of Officers, Employees and A eats. The Company by adoption of a resolution of the Board of Managers, may indemnify -and advance expenses to an officer, employee or agent of the Company to the same extent and subject to the same conditions under which it may indemnify and advance expenses to the Member or a Manager under this Article VI. 6 04 Appearance as a Witness. Notwithstanding any other provision of this Article VI, the Company may pay or reunburse expenses incurred by a Person in connectron with his appearance as a witness or other participatron in a Proceeding at a tune when he is not a named defendant or respondent in the Proceeding. 6.05 Nonexclusivit~of Rights. The nght to mdemmfication and the advancement and payment of expenses conferred in this Article VI shall not be exclusive of any other nght which the Manager or other Person indemnified pursuant to this Article VI may have or hereafter acquire under any law (common or statutory), provision of the Articles or these Regulations, agreement, vote of the Managers or otherwise. 6 06 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was serving as a Member, Manager, officer, employee or • agent of the Company Eastwood Terrace 6 . 6 07 SavmQs Clause. If this Article VI or any portion hereof shall be invalidated on any ground by any court of competent ~unsdiction, then the Company shall nevertheless indemnify and hold harmless the Person mdemmfied pursuant to this Article VI as to costs, charges and expenses (including attorneys fees), judgments, fines and amounts paid ui settlement with respect to any action, slut or proceeding, whether civil, crirriinal, administrative or investigative to the fullest extent permitted by any applicable portion of this Article VI that shall not have been invalidated and to the fullest extent permitted by applicable law ARTICLE VII TAXES AND BOOKS 7 O1 Federal Income Tax Treatment. For federal income tax purposes, the Company shall be disregarded as an entity separate from the Member pursuant to Treasury Regulation Section 301 7701 3(b)(1)(ii). No federal income tax returns shall be filed by the Company 7 02 Other Tax Returns. Subject to Section 7.01, the Member shall cause to be prepared and filed all necessary tax returns for the Company 7 03 Maintenance of Books. The Company shall keep books and records of accounts. The books of account for the Company shall be maintained on a basis determined by the Managers. The calendar year shall be the accounting year of the Company • ARTICLE VIII DISSOLUTION LIQUIDATION AND TERMINATION 8 O1 Dissolution. The Company shall dissolve and its affairs shall be wound up on the first to occur of the following: (a) the written consent of the Member (b) December 31 2050• and (c) entry of a decree of judicial dissolution of the Company under Article 6 02 of the Act. Tlie Company shall not be dissolved upon the expulsion, withdrawal, bankruptcy or dissolution of the Member or the occurrence of any other event which terminates the continued membership of the Member 8 02 Liquidation and Termination. On dissolution of the Company the Managers shall designate a Person to act as liquidator The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and m the Act. The costs of hgwdation shall be borne as a Company expense. Until final distribution, the hgmdator shall continue to operate the Company properties with all of the power and authority of the Managers. Eastwood Terrace '~ 1T J • The steps to be accomplished by the liquidator are as follows (a) the liquidator shall cause the notrce described in Article 6 OS(A)(2) of the Act to be mailed to each known creditor of and claunant against the Company in the manner described in such Article 6 OS(A)(2), (b) the hgwdator shall pay satrsfy or discharge from Company funds all of the debts, habihtres and obhgatrons of the Company (including, without linitatron, all expenses incurred in hquidatron or otherwise make adequate provision for payment and discharge thereof (including, without lmutation, the establishment of a cash escrow fund for contingent liabilities in such amount and for such team as the liquidator may reasonably determine); and (c) all remaining assets of the Company shall be distributed to the Member The distributron of cash and/or property to the Member in accordance with the provisions of this Section 8.02 constrtutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its Membership Interest and all the Company's property and constrtutes a compromise to which the Member has consented within the meaning of Article 5 OZ(D) of the Act. Notwithstanding the foregoing, in the event of dissolution of the Company the liquidator after paying or making provision for payment of all of the habihtres of the Company in accordance with any pnor legal agreements covenng assets, as provided in Sections 8.02(a) and 8.02 .above, shall distribute all of the assets to the Company's Member as provided in Section 8.02(c) above; provided, however, that such assets shall continue to be devoted to the public purpose of providing affordable housing in accordance with the Texas Housing Finance Corporations Act, or any successor statute thereto 8.03 Deficit Capital Accounts. Notwithstanding anything to the contrary contained in these Regulatrons, and notwithstanding any custom or rule of law to the contrary the Member shall not be responsible for any deficit in any capital account attributed to the Member and upon dissolution of the Company any such deficit shall not be an asset of the Company and the Member shall not be obligated to contribute such amount to the Company to bang the balance of the Member's capital account to zero 8 04 Articles of Dissolutron. On completion of the distribution. of Company assets as provided herein, the Company is terminated, and the Member (or such other Person or Persons as the Act may require or permit) shall file Articles of Dissolution with the Secretary of State of Texas and take such other actions as may be necessary to terminate the Company ARTICLE 1X GENERAL PROVISIONS 9 O1 Effect of Waiver or Consent. A waiver or consent, express or unphed, to or of any . breach or default by any Person in the performance by that Person of its obhgatrons with respect to Eastwood Terrace 8 ~~ the Company is not a consent or waiver to or of any other breach or default in the performance by . that Person of the same or any other obligations of that Person with respect to the Company Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Company irrespective of how long that failure continues, does not constitute a waiver by that Person of its nghts with respect to that default until the applicable statute-of limitations period has run. 9 02 Amendment or Modification. These Regulations maybe amended or modified from tune to trine by appropriate action of the Managers, provided, however, such amendment or modification will not be effective unless approved by the City Council of the City Any amendments to the Company's Regulations shall be consistent with the public purpose of the Company's Member and all statutes related thereto, including but not lumted to the Texas Housing Finance Corporations Act. 9 03 Binding Effect. These Regulations are binding on and inure to the benefit of the Member and its respective successors and assigns. 9 44 Govermn~ Law; Severabihty THESE REGULATIONS ARE GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICT-OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THESE REGULATIONS TO THE LAW OF ANOTHER JURISDICTION In the event of a direct conflict between the provisions of these Regulations and (a) any provision of the Articles, or (b) any mandatory • provision of the Act or (to the extent such statutes are incorporated into the Act) the TBCA or the Texas Miscellaneous Corporation Laws Act, the applicable provision of the Articles, the Act, the TBCA or the Texas Miscellaneous Corporation Laws Act shall control. If any provision of these Regulations or the application thereof to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of these Regulations and the application of that provision to other Persons or circumstances is not affected thereby and that provision shall be enforced to the greatest extent permitted by law ARTICLE X MEMBER The Company shall have one Member which shall be a governmental unit or mstnunentahty The Member of the Company shall not be permitted to directly or indu-ectly transfer its membership interests to an entity which is not a governmental unit or instrumentality In the event that the Member ceases to be a governmental unit or instrumentality such Member shall be required to transfer its membership interest in the Company to a governmental umt or instrumentality for an amount equal to the book value of such membership interest. Such transfer shall occur within mnety (90) days following the date that the Member ceased to be a governmental umt or uistnunentahty The Member of the Company shall be required to enforce rts rights m the Company in a vigorous and expeditious manner mcludmg, but not limited to, pursuing all legal and equitable remedies necessary to protect its interest in the Company • Eastwood Terrace 9 ,~ u • MEMBER. FORT WORT~,IiOUSING FINANCE AUTHORITY Ralph McCloud, President COMPANY THE VII.,LAS OF EASTWOOD TERRACE, LLC, a Texas limited habihty company Nam : Je co.-~, e L` ~,~`~.~ key Title• ~c~~'r~.~. n ARTICLE XI CITY COUNCIL A resolution approving the form of these Regulations has been adopted by the City Council of the City on the day of , 2002. Each of the undersigned has executed these First Amended and Restated Regulations to be effective as of the Effective Date. By MANAGERS • Eastwood Terrace 10