BYLAWS
OF
IRON HORSE GOLF CLUB, INC.
TABLE OF CONTENTS
ARTICLE I PURPOSE OF CLUB
ARTICLE II CLUB EMBLEM
ARTICLE III MEMBERS MEETING
1. Annual Meeting
2. Date and Place of Annual Meeting
3. Special Meeting
4. Notices
5. Quorum
6. The Board of Directors
7. Voting Percentage
8. Action Without Meetings
9. Fixing of Record Date
ARTICLE IV BOARD OF DIRECTORS
1. Number and Qualifications
2. Nominating
3. Elections
4. Removal of Directors
5. Board of Governors
6. Conflict of Interest
ARTICLE V MEETINGS OF BOARD OF DIRECTORS
1. Annual Meeting
2. Quorum
3. Meetings
4. Voting Percentage
5. Special Meetings
6. Notice of Meetings
7. Action Without Meetings
8. Telephonic Meetings
ARTICLE VI POWERS OF THE BOARD OF DIRECTORS
1. Management of the Club
2. Duties and Powers
3. Issuance of Memberships
4. Compensation
5. Interpretation of Bylaws
ARTICLE VII OFFICERS
ARTICLE VIII DUTIES OF OFFICERS
1. President
2. Vice President
3. Secretary
4. Treasurer
5. Other Officers
6. Duties of Officers
7. Removal From Office
ARTICLE IX COMMITTEES
1. Committees
2. Host Committee
ARTICLE X EQUITY MEMBERSHIPS
1. Number of Members
2. Additional Facilities, Memberships and Categories of Membership
3. Eligibility for Equity Memberships
4. Use Privileges of Equity Membership
5. Family Use Privileges
6. Membership Contributions
7. Voting
8. Application for Membership
9. Membership Certificates
10. Resignation – Transferability of Memberships
11. Transfer Upon Death or Divorce
12. Title of Membership
13. Right to Upgrade
14. Right to Exchange Privileges
ARTICLE XI OTHER MEMBERSHIPS AND — USE PRIVILEGES
1. Charter Memberships
2. Honorary Memberships
3. Non-Proprietary Memberships
4. Company’s Use Privileges
ARTICLE XII GUEST PRIVILEGES
ARTICLE XIII DUES, FEES AND CHARGES
1. Dues and Fees
2. Assessments
ARTICLE XIV DELINQUENCIES
1. Statement
2. Liens
ARTICLE XV DISCIPLINE
1. General
2. Board Action
3. Suspension
4. Resignation–Request by Board
5. Expulsion
ARTICLE XVI CORPORATE SEAL
ARTICLE XVII MISCELLANEOUS
1. Fiscal Year
2. Conflict Between Bylaws and Articles of Incorporation
3. Dissolution or Liquidation
4. Mailing Address
ARTICLE XVIII AMENDMENTS
1. Prior to Turnover Date
2. After Turnover Date
3. Procedure for Amendments by Board of Directors
4. Procedure for Amendments by Members
ARTICLE XIX DISPUTE RESOLUTION
ARTICLE I
PURPOSE OF CLUB
The nature and purpose of Iron Horse Golf Club, Inc. (hereinafter referred to as the “Club”) is to own and operate a private country club for the recreation, pleasure and benefit of its members and their guests. The period of duration of the Club is perpetual.
ARTICLE II
CLUB EMBLEM
The emblem of the Club will be of a style and design to be approved by the Board of Directors.
ARTICLE III
MEMBERS MEETING
1. ANNUAL MEETING
An annual meeting of the members of the Club will be held for the purposes of receiving reports of officers and others, to elect directors after the Turnover Date (as defined in Article IV, Section 1 hereof) and for such other business as may be properly brought before the meeting.
2. DATE AND PLACE OF ANNUAL MEETING
The first annual meeting of the members will be held on such date determined by the Board of Directors. Thereafter, each annual meeting will be held at such time and place in the Community (as defined herein) as the Board of Directors may designate.
3. SPECIAL MEETING
Special meetings of the members may be called by the President, a majority of the members of the Board of Directors, or, by the written request of twenty-five percent (25%) or more of the votes of the members of the Club then entitled to be voted. Any request will be submitted to the President who will call a special meeting within thirty (30) days of the date of receipt of such request. Notices of any special meeting must contain a statement of the purpose(s) for which such special meeting is called and no other business may be transacted at that meeting.
4. NOTICES
The Secretary will give not less than ten (10) days nor more than sixty (60) days prior notice, by mail, postage prepaid, to all voting members of the Club, stating the time, place and purpose of any special meeting. Notice of any such meeting will be posted on the official bulletin board at the clubhouse on the date of its mailing to the members.
5. QUORUM
The presence, either in person or by proxy, of voting members having one-third (1/3) of the votes then entitled to be voted will constitute a quorum at any meeting of the voting members.
6. THE BOARD OF DIRECTORS
The Board of Directors will determine the form and procedure for the use of proxies.
7. VOTING PERCENTAGE
A majority of the votes cast on a particular matter is necessary for passage of any motion, except as otherwise expressly provided herein.
8. ACTION WITHOUT MEETINGS
Action may be taken by the members of the Club only at a properly called and noticed annual or special meeting of the members. Action may not be taken by the written consent of the members in lieu of such annual or special meeting.
9. FIXING OF RECORD DATE
For the purpose of determining the members entitled to notice of or to vote at any meeting of the members, or in order to make a determination of the members for any other proper purpose, the Board of Directors of the Club may fix in advance a date as the record date for any such determination of the members, such date in any case to be no more than sixty (60) days and not less than ten (10) days, before the date of such meeting. If no record date is fixed for the determination of the members entitled to notice of, or to vote at, a meeting of the members, the business day preceding the date on which notice of the meeting is mailed shall be the record date for such determination of the members. When determination of the members entitled to vote at any meeting of the members has been made, such determination shall apply to any adjournment of the meeting.
ARTICLE IV
BOARD OF DIRECTORS
1. NUMBER AND QUALIFICATIONS
The government and administration of the affairs and the property of the Club will be vested in a Board of Directors. The Board of Directors shall consist of at least three (3) members but not more than nine (9) members.
Prior to the date of the transfer of the management and control of the Club (hereinafter referred to as the “Turnover Date”) to the equity members of the Club by Iron Horse at Whitefish, LLC, a Delaware limited liability company (hereinafter referred to as “Company”), which will occur as set forth in the Subscription Agreement entered into between the Club and the Company on January 1, 1999 (hereinafter referred to as the “Subscription Agreement”), all the members of the Board of Directors will be designated by the Company. Members of the Board of Directors appointed by the Company are not required to be members of the Club. Prior to the Turnover Date, the directors of the Club shall be required to act in accordance with the Plan Documents (as defined in the Subscription Agreement), and if the Plan Documents do not provide specific guidance, the directors may act to benefit the Company. In the latter case, any such action shall be conclusively presumed to also be in the best interests of the Club, and any such action shall not be deemed (1) a breach of the director’s duty of loyalty to the Club, (2) an act or omission not in good faith or intentional misconduct, (3) a transaction from which the director derived an improper benefit, (4) a conflict of interest for the director, or (5) an improper distribution.
2. NOMINATING
a. After the Turnover Date, not more than ninety (90) days and not less than sixty (60) days before the annual membership meeting, the Board of Directors will appoint a Nominating Committee consisting of five (5) members of the Club, three (3) of whom will be members of the Board of Directors. Members of the Nominating Committee will serve for a term of one (1) year or until their successors are appointed and qualified. Unless specifically requested by a majority of the Board of Directors, the Nominating Committee will not nominate candidates to fill any vacancies occurring by reason of death, resignation or otherwise, for any unexpired term.
b. The Nominating Committee will recommend, at least thirty (30) days prior to the members’ annual meeting, the names of members of the Club selected by a majority vote of the Nominating Committee to be submitted to the members of the Club at their annual meeting for election to the Board of Directors.
c. Ten percent (10%) or more of the total number of members of the Club entitled to vote who are not on the Nominating Committee or the Board of Directors may also nominate candidates for the Board of Directors by petition signed by them and filed with the Secretary at least thirty (30) days prior to the members’ annual meeting. The names of any such nominees, after having been certified by the Secretary or any other officer that they are qualified for election and have been nominated in accordance with the provisions of these Bylaws, will be posted on the official bulletin boards of the Club and will be included on any proxy mailing to the members of the Club.
d. The provisions regarding nominations of candidates do not apply to directors designated by the Company.
3. ELECTIONS
a. There will be no cumulative voting and no preemptive rights.
b. Voting will either be in person or by proxy.
c. Until the Turnover Date, the Company will designate all the members of the Board of Directors. The Company, however, will establish a members’ Board of Governors to serve as a liaison between the Company and the members of the Club until the Turnover Date.
d. On the Turnover Date, the then existing directors appointed by the Company will resign as directors and the persons comprising the members’ Board of Governors will become the Board of Directors of the Club. The terms of office of the members of the Board of Directors will be staggered as follows, so that the terms of office of three (3) of the nine (9) members of the Board of Directors will expire each year: three members of the Board of Governors will serve on the Board of Directors until the first annual meeting following the Turnover Date; three members of the Board of Governors will serve on the Board of Directors until the second annual meeting following the Turnover Date; and three members of the Board of Governors will serve on the Board of Directors until the third annual meeting following the Turnover Date. The Board of Governors shall determine by vote prior to the Turnover Date, which members will serve on the Board of Directors until the first annual meeting, which shall serve until the second annual meeting, and which shall serve until the third annual meeting.
e. After the Turnover Date, only the members of the Club will elect members to the Board of Directors. The term of office of the elected Board of Directors will be three (3) years, so that the term of office for three (3) of the nine (9) members of the Board of Directors will expire each year.
f. After the Turnover Date and prior to each annual members’ meeting, the Nominating Committee will nominate to the members the number of nominees to serve as directors equal to that of those directors whose terms will next expire for a three (3) year term. This number will be adjusted to conform to the total number to be elected to the Board of Directors for the ensuing year, as determined by a vote of the members.
4. REMOVAL OF DIRECTORS
Before the Turnover Date, a director may only be removed by the Company or by vote of two-thirds (2/3) of the directors then in office. After the Turnover Date, a director may be removed by the members at a meeting called for the purpose of removing the director. The notice of the meeting shall state that one of the purposes of the meeting is to remove the director. The vote required for removal of a director is a majority of the votes entitled to be cast by all of the members of the Club (whether or not present in person or by proxy at the meeting).
5. BOARD OF GOVERNORS
A Board of Governors will be established to serve as a liaison between the Company appointed Board of Directors and the members. The Board of Governors will meet with Club management on a regular basis to discuss the operation of the Club and the Cub Facilities. The Company will designate all of the members of the Board of Governors. The Board of Governors shall consist of equity members of the Club. The Board of Governors will have no duty or power to negotiate or otherwise act on behalf of the members of the Club and shall serve only in an advisory capacity until the Turnover Date.
6. CONFLICT OF INTEREST
Where any conflict arises between the interests of the Company and the Club, the directors designated by the Company will act in accordance with the Plan Documents (as defined in the Subscription Agreement) and if the Plan Documents do not provide specific guidance, the directors may act to benefit the Company. In the latter case, any such action (including entering into contracts with the Company or its Affiliates) shall be conclusively presumed to also be in the best interests of the Club, and any such action shall not be deemed a conflict of interest for the director.
ARTICLE V
MEETINGS OF BOARD OF DIRECTORS
1. ANNUAL MEETING
Each year the Board of Directors will hold its annual meeting to elect officers and to consider any other matters as may be properly brought before the meeting. After the Turnover Date, the annual meeting of the Board of Directors will be held within ten (10) days after the annual meeting of the members of the Club.
2. QUORUM
A majority of the Board of Directors will constitute a quorum at any meeting for the transaction of business.
3. MEETINGS
The Board of Directors will have a minimum of five (5) regular meetings in each year at such times as the Board of Directors will determine.
4. VOTING PERCENTAGE
A majority of the votes cast on a particular matter is necessary for passage of any motion.
5. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by or at the request of the President or any three directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place as the place for holding any special meeting of the Board of Directors called by them.
6. NOTICE OF MEETINGS
Notice of any regular or special meeting of the Board of Directors shall be given at least two (2) days previous thereto by written notice to each director at his or her address as shown by the records of the Club, except that no special meeting of directors may remove a director unless written notice of the proposed removal is delivered to all directors at least twenty (20) days prior to such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope so addressed, with postage thereon prepaid. Notice of any special meeting of the Board of Directors may be waived in writing signed by the person or persons entitled to the notice either before or after the time of the meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice or waiver of notice of such meeting, unless specifically required by law or these By Laws.
7. ACTION WITHOUT MEETINGS
Any action which may be taken by the Board of Directors, or any committee thereof, may be taken without a meeting if consent in writing setting forth the action to be taken, signed by all of the directors, or all of the members of the committee, as the case may be, is filed in the minutes of the proceedings of the Board of Directors or of the committee, whether done before or after the action so taken. Such consent will have the effect of a unanimous vote.
8. TELEPHONIC MEETINGS
Members of the Board of Directors may participate in any meeting or by means of voice conferencing, video conferencing or similar communications equipment. All persons participating in the meeting must be able to hear each other at the same time. Participation by such means will constitute presence in person at the meeting.
ARTICLE VI
POWERS OF THE BOARD OF DIRECTORS
1. MANAGEMENT OF THE CLUB
The Board of Directors will exercise all powers of the Club and do all acts and things necessary to carry out the purposes of the Club.
2. DUTIES AND POWERS
The Board of Directors will:
a. Elect the officers of the Club;
b. Appoint committees and assign duties;
c. Fill vacancies on the Board of Directors due to death, resignation, inability to perform duties or otherwise, until the next election of directors by the members;
d. Appoint managers and other employees and delegate such authority as is considered necessary for the proper operation and management of the Club;
e. Adopt, alter, amend or repeal the Rules and Regulations of the Club, and other rules and regulations governing use of the Club and all its facilities by members and their guests;
f. Establish the amount of the membership contribution for each category of membership and its terms of payment after the initial sale of all Equity Memberships, and the amount of dues, fees and other charges;
g. Have the power to replace any director who fails to attend fifty percent (50%) of the regular Board meetings in any one (1) Membership Year;
h. Have the power to expend funds to the extent of the amount in the Club’s treasury or owing to the Club; to enter into leases and make contracts (including contracts and leases, extending beyond the Turnover Date), borrow money and incur indebtedness for the purposes of the Club; and, to cause promissory notes, bonds, mortgages or other evidences of indebtedness to be executed and issued;
i. Have the power to exchange rights to use the Club’s facilities with members of other country clubs;
j. Enter into management agreements, including management agreements with the Company or its affiliates;
k. Enter into agreements on behalf of the Club to effectuate turnover of management and control of the Club to the members; and
l. Have the power to do all such other acts and things as are permitted by the laws of the State of Montana with respect to non-profit corporations, as those laws now exist or as they may hereafter provide.
3. ISSUANCE OF MEMBERSHIPS
The Board of Directors will have sole authority to issue, suspend, cancel and transfer memberships and will have a membership certificate prepared in form and content consistent with the provisions of the Articles of Incorporation and these Bylaws of the Club.
4. COMPENSATION
No director will receive a salary or any other compensation whatsoever, but will be entitled to reimbursement for all expenses reasonably incurred in performing any duties pursuant to these Bylaws.
5. INTERPRETATION OF BYLAWS
The Board of Directors will have the corporate power generally to do everything permitted for non-profit corporations by law, statute, its Articles of Incorporation and these Bylaws, and to determine the interpretation or construction of these Bylaws, or any parts hereof which may be in conflict or of doubtful meaning, and its decision will be final and conclusive, so long as consistent with applicable law.
ARTICLE VII
OFFICERS
The Board of Directors at each annual meeting will elect, to serve for the term of one (1) year and until their successors will be elected, a President, a Vice President, a Treasurer and a Secretary, and such other officers as the Board of Directors from time to time determines appropriate. The officers shall not be liable for the debts of the Club.
ARTICLE VIII
DUTIES OF OFFICERS
1. PRESIDENT
The President will preside at all meetings of the members and the directors and enforce observance of the provisions of these Bylaws and all rules and regulations of the Club. The President may call special meetings of the Board of Directors, will be an ex-officio member of any and all committees and is empowered to execute all papers and documents requiring execution in the name of the Club.
2. VICE PRESIDENT
In the absence or disability of the President, the Vice President will perform and carry out all duties and responsibilities of the President.
3. SECRETARY
The Secretary will keep records and minutes of all meetings of the Board of Directors and the membership, and the Secretary will be responsible for giving all required notices of such meetings. The Secretary will have custody of the Seal of the Club and all membership records will be kept under the Secretary’s supervision.
4. TREASURER
The Treasurer will cause to be collected, held and disbursed, under the direction of the Board of Directors, all monies of the Club, and it will be the Treasurer’s duty to collect monies due the Club from the issue of memberships, dues and charges of members of the Club, and all amounts due from others. The Treasurer will keep or cause to be kept regular books of account and all financial records of the Club, and will prepare budgets and financial statements, when and in the form requested by the Board of Directors. The Treasurer will deposit or cause to be deposited all monies of the Club in an account or accounts in the Club’s name, in the bank or banks designated by the Board of Directors, and will give a surety bond for faithful performance or equivalent insurance in the amount directed by the Board of Directors, which surety bond premium will be paid by the Club. Any other person or persons having access to monies of the Club or its bank accounts will be similarly bonded.
5. OTHER OFFICERS
The Board of Directors may appoint additional officers and assign their duties.
6. DUTIES OF OFFICERS
Any officer may be given additional assignments and duties by the Board of Directors. Prior to the Turnover Date, the officers of the Club shall be required to act in accordance with the Plan Documents (as defined in the Subscription Agreement), and if the Plan Documents do not provide specific guidance, the officers may act to benefit the Company. In the latter case, any such action shall be conclusively presumed to also be in the best interests of the Club, and any such action shall not be deemed (1) a breach of the officer’s duty of loyalty to the Club, (2) an act or omission not in good faith or intentional misconduct, (3) a transaction from which the officer derived an improper benefit, (4) a conflict of interest for the officer, or (5) an improper distribution.
7. REMOVAL FROM OFFICE
Any officer may be removed from office, with or without cause, by a majority vote of the members of the Board of Directors.
ARTICLE IX
COMMITTEES
1. COMMITTEES
There will be no mandatory standing committees established by the Club, except that it is expected that the Board of Directors will establish a Host Committee described below. The Board of Directors may establish ad hoc, temporary or permanent members’ committees, from time to time, in its discretion. The President, subject to the approval of the Board of Directors, will designate the chairperson (who will be a director) and members of any committee established. The committees will act in an advisory capacity to the Board of Directors and will have no independent authority.
2. HOST COMMITTEE
The Host Committee will consist of Golf Members who are available to play golf with guests of members when unaccompanied by the sponsoring member and shall host other golf events sponsored by the Club. The Board of Directors shall adopt from time to time rules and procedures for requesting Host Committee accompaniments and other matters related to the Host Committee operation.
ARTICLE X
EQUITY MEMBERSHIPS
1. NUMBER OF MEMBERS
Three categories of Equity Membership are offered by the Club: Golf Membership, Sports Membership and Social Membership. The maximum number of Equity Memberships permitted to be issued in the Club will be equal to 375 Golf Memberships and 100 Social Memberships. The total number of Sports Memberships is limited to the number of property owners who do not purchase a Golf Membership or a Social Membership.
2. ADDITIONAL FACILITIES, MEMBERSHIPS AND CATEGORIES OF MEMBERSHIP
The Club may, in its sole discretion, construct, acquire or otherwise add additional facilities to the Club located either at the Club or at another location, including additional golf facilities. If the Club adds additional recreational or social facilities to the Club (including any additional golf facilities), the Club may offer additional categories of membership privileges to its members and such other persons determined by the Club from time to time. If offered, each member may acquire some or all of the additional membership privileges, subject to availability, on such terms and conditions as may be determined by the Club from time to time. Members who elect to acquire the additional membership privileges may be required to pay an additional membership contribution and additional dues, fees and charges for the additional membership privileges. The Club will reserve the right to remove or restrict the use of any additional facilities added to the Club. If the Club constructs, acquires or otherwise adds additional golf facilities, the Club may issue an additional 187 Golf Memberships for each additional 9 full regulation holes of golf constructed, acquired or otherwise added to the Club Facilities.
3. ELIGIBILITY FOR EQUITY MEMBERSHIPS
Equity Memberships are being offered to persons who are approved for membership in the Club. Equity Memberships may be offered to owners and initial purchasers of the residential homes or homesites within the Iron Horse residential community, referred to as the “Community,” and to persons who do not own property in the Community, in the discretion of the Company and the Club. Sports Memberships may be issued only to owners of homes or homesites in the Community.
The Company and the Club are providing each initial purchaser of a home or homesite from the Company or one of its approved builders a thirty (30) day period following the execution of the contract to purchase the home or homesite in which to apply for a membership. After the 30-day initial offering period, the ability to apply for a membership will not be guaranteed and initial purchasers may obtain a membership only if one is available as determined by the Club and the Company. All applications are subject to acceptance by the Club. IF AN INITIAL PURCHASER OF A HOME OR HOMESITE DOES NOT APPLY FOR A MEMBERSHIP DURING THE 30-DAY INITIAL OFFERING PERIOD, IT IS UNLIKELY THAT A MEMBERSHIP WILL BE AVAILABLE IN THE FUTURE.
Available Equity Club Memberships (as defined in the Subscription Agreement) will be sold to whomever the Club determines in its discretion. Available Equity Company Memberships (as defined in the Subscription Agreement) will be sold to whomever the Company determines in its discretion.
All of the unsold Equity Memberships in the Club will be reserved by the Company and the Club and may be offered to any person which the Company or the Club deems appropriate, in its sole and absolute discretion. Reserved memberships will not be considered to be available memberships and neither the Company nor the Club may be compelled to sell them.
A purchaser of a home in the Community may apply for membership at the time of executing the contract to purchase the home. The Club, in its sole discretion, may permit the purchaser to use the Club Facilities prior to closing on the home purchase, upon approval of the member and payment of the required membership contribution, dues and other fees to the Club. The Club reserves the right to make the continuation of membership privileges conditional upon the closing of the purchase of the home. In the event the purchaser does not close on the home, then the Club may terminate membership privileges, in which event the membership contribution will be refunded, without interest. A purchaser of a vacant lot will not be permitted to use the Club Facilities prior to the closing of the purchase of the lot, unless otherwise determined by the Club in its sole and absolute discretion.
If a person acquires two or more residential homes or homesites in the Community, the owner must apply for a membership for each residential home or homesite if membership privileges are to be acquired with each such home or homesite. Neither the Club nor the Company can guarantee the availability of a membership at a later date. A member is responsible for the payment of dues with respect to each membership and is not entitled to any special privileges for multiple ownership of memberships. Persons who acquire two or more contiguous residential homesites and who construct only one residential home thereon may desire only one Equity Membership. If a membership is not acquired for the contiguous residential homesite and the homesite is thereafter sold, then the purchaser of the homesite may obtain a membership for the homesite only if a membership is available as determined by the Club and the Company.
4. USE PRIVILEGES OF EQUITY MEMBERSHIP
Upon payment of the required membership contribution and the appropriate dues and fees and by complying with these Bylaws and the Rules and Regulations described herein, Equity Members will be entitled to the following membership privileges:
Golf Membership. A Golf Membership entitles the member to use all of the golf, tennis, swimming, fitness, and social facilities of the Club. Golf Members will not be charged green fees or court fees or court fees for use of the golf and tennis facilities, but will be required to pay golf cart fees. Golf Members are entitled to reserve golf tee times and tennis court times in accordance with the policies of the Club announced from time to time.
Sports Membership. Sports Memberships are available only to persons who own a residential home or homesite in the Community. Sports Members are entitled to use all of the tennis, swimming, fitness and social facilities of the Club. Sports Members are entitled to use the golf facilities an unlimited number of times before April 1 and after October 1 each year, and a total of six rounds during each April 1 to October 1 period (or on a space available basis as approved by the Head Golf Professional or General Manager) or as a guest of a member in accordance with the Rules and Regulations. Sports Members are required to pay reduced green fees and golf cart fees for use of the golf course. Sports Members will not be charged court fees for use of the tennis facilities. Sports Members are entitled to reserve golf tee times and tennis court times in accordance with the policies of the Club announced from time to time.
Social Membership. Social Members are entitled to use all of the dining, swimming or fitness facilities of the Club. Social Members may play golf on the golf course a total of six rounds (including guest rounds) before April 1 and after October 1 each year. Social Members are not entitled to use the tennis facilities of the Club.
In order to provide for the orderly administration of the Club and the utmost playing pleasure for all members, the Club reserves the right, from time to time, to modify privileges of membership, including but not limited to, establishing different categories of membership, and to establish rules governing access, reservation systems, sign-up privileges and starting times with respect to the golf course, the tennis courts and other recreational facilities of the Club that exist now or are constructed later.
5. FAMILY USE PRIVILEGES
The immediate family of a member will be entitled to use the Club Facilities on the same basis as the member. An Equity Member’s immediate family is defined as the member’s spouse and the unmarried children of either spouse under the age of 23 who are living at home or attending school on a full-time basis.
An unmarried member living together with another individual in the same household as a family unit may designate the other individual to use the Club Facilities as an immediate family member on a membership year basis, subject to the approval of the Club, in its sole discretion. The member shall be responsible for the payment of all charges and fees incurred by the designated user. The Club reserves the right to establish such fees and other rules it deems appropriate.
The Club reserves the right from time to time, to permit the extended family of a member to use the membership privileges upon payment of such fees as may be established by the Club. The extended family shall include the parents, adult children (children who do not fall within the immediate family definition) and grandchildren of the member and spouse. The Club may modify or terminate this privilege and establish such rules with respect thereto as it may determine.
6. MEMBERSHIP CONTRIBUTIONS
Persons desiring to be members of the Club must pay the membership contribution established for memberships on the date of application, except that purchasers who apply for their memberships during the thirty (30) day period following the execution of their contracts to purchase homes or homesites in the Community will pay the membership contribution in effect on the date they signed their contracts to purchase such homes or homesites.
The membership contribution for all memberships in the Club, including Equity Memberships held by the Club and Equity Memberships held by the Company, will be fixed by the Company from time to time at any level it deems appropriate in its sole discretion, until the initial issuance of all of the Equity Memberships. The membership contribution for memberships which are available for reissuance by the Club will be equal to the membership contribution set by the Company for unissued memberships. Thereafter, the membership contribution for memberships will be set by the Board of Directors of the Club as determined from time to time. The membership contribution shall be paid in accordance with Membership Purchase Agreement.
7. VOTING
Equity Golf Members are entitled to four (4) votes per membership, Equity Sports Members are entitled to two (2) votes per membership and Equity Social Members are entitled to one (1) vote per membership on all matters to be voted upon by the members of the Club. Neither the Company nor the Club is entitled to vote unissued Equity Memberships which it holds on matters submitted to the vote of the members, except that the Company may vote those Equity Memberships which it has purchased from the Club.
8. APPLICATION FOR MEMBERSHIP
a. All applications for membership will be in the form prescribed by the Board of Directors and will be signed by the applicant. An applicant for membership must mail or deliver to the Membership Director at the Club a fully completed and signed Application for Membership, Membership Purchase Agreement and a check in U.S. funds for the amount of the membership contribution due and applicable dues. A Membership Purchase Agreement is irrevocable by the applicant after it has been mailed or delivered to the Club, unless the applicant is not approved for membership.
b. After receiving the required materials, a determination will be made whether the applicant has satisfied the relevant conditions of membership. The determination of whether an applicant is approved for membership is made by the Company for all applicants for memberships being sold by the Company and by the Board of Directors of the Club for all other applicants. If approved for membership, the Club will invite the applicant to become a member. If the application is not acted upon favorably, the applicant’s payment will be returned without any interest thereon. The Board of Directors, either directly or through a Membership Committee (if one is formed), will undertake the necessary investigation and appraisal of an applicant. This may include an interview with the applicant at the sole discretion of the Board of Directors. Three (3) dissenting votes of members of the Board of Directors shall constitute disapproval. The Company is under no obligation to give any reason for denying an application.
c. Notwithstanding anything contained in these Bylaws to the contrary, each initial purchaser of a home or homesite in the Community who makes application for membership in the Club in the form prescribed by the Board of Directors along with payment of the applicable membership contribution within thirty (30) days following the closing of the purchase of his or her home or homesite must be approved by the Club in its sole and absolute discretion.
d. Applicants approved and invited by the Board of Directors for membership who fail to pay the membership contribution and dues, fees and other charges, as prescribed by the Board of Directors, within thirty (30) days after notice that they are due and payable, may forfeit their right to membership.
e. Upon acceptance and invitation for membership in the Club, members of the Club agree to be bound by the terms and conditions of the Membership Plan and its exhibits, including the Bylaws as amended from time to time, and irrevocably agree to fully substitute the membership privileges acquired pursuant to the Membership Plan for any present or prior rights or privileges in or to use the Club Facilities.
f. Comments from members with respect to prospective members shall be privileged communications and only the Board of Directors and any Membership Committee established by the Board of Directors (and no one else) shall have access to such communications.
9. MEMBERSHIP CERTIFICATES
a. Every accepted member of the Club who paid the required membership contribution for a membership in the Club shall receive a membership certificate. Each membership certificate shall be in a form approved by the Board of Directors and will state that the membership is issued subject to the Bylaws of the Club as they now are or may be amended and shall be subscribed by the President and Secretary and under the seal of the Club.
b. Membership certificates are not redeemable or transferable except as specifically provided by these Bylaws and then only through the Treasurer of the Club. Upon the resignation or expulsion of a member, the member will surrender his or her membership certificate. Whenever any member shall cease to be a member for any reason, including death, resignation, recall or other provisions of these Bylaws, such cessation will operate to authorize the Treasurer of the Club to effectuate the redemption, cancellation, purchase or sale of the membership of such member in accordance with and in the manner prescribed by these Bylaws.
10. RESIGNATION – TRANSFERABILITY OF MEMBERSHIPS
a. Equity Memberships are not transferable or assignable except as provided in this Section or Section 11 hereof.
b. An Equity Member may resign or otherwise transfer a membership only to the Club by resigning and arranging for the Club to reissue the membership. Members who desire to resign their memberships to the Club must give the Club written notice that their memberships are available for the Club to reissue. The Club will maintain a list of persons who desire to acquire each category of membership in the Club, and a resigned member’s waiting list of members who want the Club to reissue their membership.
c. An Equity Member who owns a residential home or homesite in the Community may arrange for the Club to reissue his or her membership to the subsequent purchaser of the home or homesite upon approval of the subsequent purchaser’s Application for Membership by the Club. The issuance of the membership is not subject to any of the waiting lists described herein. The procedure for such reissuance shall be as follows:
(i) The resigning Equity Member who owns a residential home or homesite in the Community must submit a resignation in writing stating: (a) that such member is selling such member’s residential home or homesite in the Community, and (b) that the resignation shall become effective following the closing of title and the acceptance of the purchaser as a member;
(ii) The purchaser must make application for membership;
(iii) Upon the resignation becoming effective, as hereinabove provided, the resigning member shall deliver to the Secretary of the Club such member’s membership certificate; and
(iv) The membership contribution to be paid to the Club by such purchaser shall be the amount of the membership contribution at the time of the application. After the purchaser has become a member and upon the Club’s receipt of the purchaser’s membership contribution, the Club shall promptly remit to the resigning member the amount due as provided in this Section. As soon as practical thereafter, the Secretary of the Club shall cancel the membership certificate of the resigning member and issue a new membership certificate to the purchaser.
d. If a resigning member does not so arrange for the subsequent purchaser to be issued his or her membership, the resigned membership will be placed on the waiting list for reissuance.
e. If no one is on the list of persons who desire to acquire a membership, the resigned membership (other than a resigned membership to be reissued to the subsequent purchaser of the member’s home or homesite in the Community) will be placed on a list to be reissued on a first-resigned, first-reissued basis. As long as there are unissued memberships in the resigned member’s category of membership, every fifth membership issued in that category will be a resigned membership from the waiting list. The other four memberships issued will be unissued Equity Memberships. If there are no unissued memberships in the resigned member’s category of membership, every membership issued in that category will be a resigned membership from the waiting list. The Club may, in its sole discretion, but is not required to, repurchase a resigned membership prior to another individual acquiring the resigned membership as set forth above.
f. An Equity Member may transfer his or her membership to his or her adult child over the age of 18 through the Club. The transfer will be subject to the approval of the Club and to such capital contribution or transfer fee determined by the Club from time to time. The membership will not be subject to any waiting lists.
g. Unless otherwise provided in the resigning member’s Membership Purchase Agreement, the amount of the membership contribution to be refunded to the resigning Equity Member is eighty percent (80%) of the amount of the membership contribution paid by the successor member. Upon the Club’s repurchase of a resigning member’s membership, the Club will deduct from the amount to be paid to the resigning member any amount which the resigning member owes to the Club. The difference between the membership contribution paid by the successor member and the amount repaid to the resigning member will be paid to the Company prior to the Turnover Date pursuant to the Subscription Agreement.
h. The Club shall be obligated to refund the membership contribution to the resigning member only after the membership has been repurchased by the Club and reissued to a successor member who has paid the membership contribution in full to the Club. The Club, in its sole discretion, may repay the membership contribution to the resigning member prior to the payment of the membership contribution by a successor member.
i. A member may resign from the Club by giving written notice to the Secretary of the Club.
If a membership is reissued during a membership year, the resigned member will be entitled to a refund of a pro rata portion of any dues paid in advance for the remainder of the membership year in which the reissuance occurs.
A member who has resigned his or her membership in the Club may continue to use the Club Facilities and will continue to be obligated to pay all dues and assessments associated with the membership being resigned until the resigned membership is reissued by the Club. Any dues and assessments owed to the Club by a resigned member will be deducted from the amount paid to the resigned member upon the Club’s reissuance of his or her membership.
11. TRANSFER UPON DEATH OR DIVORCE
a. Upon the death of a member, the membership automatically passes to the surviving spouse, if any. If the deceased member is not survived by a spouse, then the legatee or heir of the membership certificate, if eligible for membership in the Club and approved by the Board of Directors, shall have the right to acquire the deceased member’s membership without the payment of any additional membership contribution. In this event, the legatee or heir of such membership certificate shall be required to notify the Club in writing of his or her desire to acquire the deceased member’s membership in the Club. However, the legatee or heir must make application no later than ninety (90) days after acquiring the right to possession of the membership certificate, and pay all debts and assessments for the intervening period between the date of the member’s death and the date of the application, in addition to dues and all other applicable charges. If the legatee or heir does not apply for a membership within ninety (90) days after acquiring the right to possession of the membership certificate, the membership shall automatically without further act of the Club be deemed to be surrendered to the Club, and thereafter, the Club may reissue the membership certificate, whereupon the Club shall pay the estate of the deceased member, upon payment of the membership contribution in full by the successor member, the amount due as provided in these Bylaws upon a transfer of a membership.
b. In the event married members are legally separated or divorced, title to the membership, including all rights and benefits given to the holder thereof, shall vest in the spouse awarded the membership certificate, provided that such spouse fulfills the eligibility requirement for membership in the Club. In the absence of a separation agreement or court decree the rights and benefits of membership will continue in the owner of the membership as reflected on the certificate. Both of the divorced or legally separated persons shall be required to give written notice to the Club immediately after such divorce or legal separation designating the person who is entitled to the rights and privileges of the membership. Until such written notice has been provided to the Club, both such persons shall remain responsible for the payment of all dues, fees, and charges associated with such membership certificate. The person designated as the member shall be responsible for all dues, fees and charges incurred subsequent to providing such written notice to the Club.
12. TITLE OF MEMBERSHIP
Memberships may be held in the name of an individual or in the name of an individual and the individual’s spouse. Additionally, a membership, other than a Charter Membership, may be held in the name of a company, partnership, trust, or other form of business entity. For memberships issued in the name of a business entity, the owner(s) shall be required to designate one individual or family who will have the right to use the facilities of the Club as the beneficial user of the membership upon approval by the Board of Directors. The designated individual must be an officer or director of the business entity. The right to designate users is subject to the rules and regulations established by the Club from time to time. Changes in the designation of the individual or family are discouraged and may be permitted only in the Club’s sole and absolute discretion. Other individuals using the Club Facilities during the same time period as the beneficial user may do so as guests, subject to the Rules and Regulations and upon payment of the applicable guest charges.
13. RIGHT TO UPGRADE
Members may upgrade to a higher category of membership, subject to availability and if invited as determined by the Club and the Company, by paying the difference between the membership contribution and dues then charged for the member’s category of membership, and the membership contribution and dues then charged for the higher category of membership. Notwithstanding this provision, a person who does not own a home or homesite in the Community may not upgrade to Sports Membership.
14. RIGHT TO EXCHANGE PRIVILEGES
Members who do not desire to use their full membership privileges in any consecutive twelve month period may arrange through the Club for the exchange of their membership privileges with those of another member of the Club. Members may exchange their membership privileges upon the approval of the Club in its sole discretion, the payment of an administrative fee charged from time to time by the Club, and the exchanging members’ payment of their respective dues. Members shall be responsible for payment of all fees, except dues, based on the category of their underlying membership.
ARTICLE XI
OTHER MEMBERSHIPS AND — USE PRIVILEGES
1. CHARTER MEMBERSHIPS
The Company shall be permitted to issue up to 12 Charter Memberships in the Club to specifically named individuals designated by the Company, in accordance with the terms of the Subscription Agreement. Charter Memberships shall be in addition to Equity Memberships and shall not count toward the Equity Membership cap. A Charter Membership entitles the member to use all of the golf, tennis, swimming, fitness and social facilities of the Club. Charter Members will not be charged green fees or court fees for use of the golf and tennis facilities, but are required to pay golf cart fees. Charter Members will not be required to pay any membership contributions or operating or capital assessments. Charter Members will not be required to pay dues prior to the Turnover Date and Charter Members will pay 25% of Golf Member dues after the Turnover Date. Charter Members will be required to pay food and beverage charges and for personal services and treatments. Charter Members shall not have voting privileges. Charter Memberships do not entitle the holder thereof to any equity or ownership interest in the Club or the Club Facilities. The Charter Memberships shall not be assignable or transferable except to the member’s spouse or child in accordance with Article X, Section 10 of these Bylaws and shall terminate and be surrendered to the Club upon the death of the member and his or her spouse or child. The rights of the Charter Memberships may not be rescinded, amended or terminated by the Club, its successors or assigns.
2. HONORARY MEMBERSHIPS
A total of five Honorary Memberships may be issued to persons designated by the Club from time to time. These Honorary Memberships are in addition to all other memberships permitted to be issued in the Club and will be available on such terms and conditions as determined by the Club from time to time. Honorary Members shall be permitted to use the Club Facilities on the same basis as Golf Members. Honorary Members will not pay any greens fees or court fees for their use of the golf and tennis facilities, but shall be required to pay cart fees and all other fees and charges incurred at the Club. Honorary Memberships will not be assignable or transferable by the Honorary Members and will terminate and be surrendered to the Club upon receipt of written notice from the Club. Any Honorary Membership recalled by the Club may be reissued to another person as designated by the Club from time to time.
3. NON-PROPRIETARY MEMBERSHIPS
The Club has the right, in the discretion of the Board of Directors, to issue non-proprietary Golf and Social annual memberships, to the extent that the total number of such annual memberships and Equity Memberships does not exceed the maximum number of Equity Memberships permitted to be issued in such category. Such memberships will entitle use of the Club Facilities designated by the Board of Directors and may be offered to persons who do not own property in the Community.
4. COMPANY’S — USE PRIVILEGES
The Company and its designees shall have the right prior to the Turnover Date to designate persons to use any or all of the Club Facilities, including the golf course, for the purpose of entertaining prospective initial or resale purchasers of Equity Memberships or homes or homesites in the Community and upon such terms and conditions as are determined from time to time by the Company. The persons designated by the Company shall include, without limitation, persons who are employees or agents of the Club, persons who are prospective purchasers of property in the Community, persons who are prospective members in the Club, and persons who are involved in special events held at the Club. The individuals designated by the Company are subject solely to approval by the Company. Use of the Club Facilities by the Company and its designees may not unreasonably interfere with the members’ use of the Club Facilities.
After the Turnover Date, the Company will have the right to use the Club Facilities for the purpose of entertaining initial or resale purchasers of Equity Memberships and homes or homesites in the Community upon payment of the use fees charged guests of Equity Members.
The Company and its designees shall have the right prior to the initial sale of the Equity Golf Memberships to hold promotional and other special events, including golf and tennis tournaments at the Club, and to promote the Club in advertisements and promotional materials by making reference to the Club and the availability of memberships in the Club.
ARTICLE XII
GUEST PRIVILEGES
Guests of members may be extended guest privileges subject to applicable guest fees, charges and the rules and regulations established from time to time by the Board of Directors. Guest privileges may be denied, withdrawn or revoked at any time for reasons considered sufficient by the Board of Directors in its sole and absolute discretion. The Club reserves the right to restrict guest privileges, including the number of times a guest may use the Club Facilities or the times of play. A houseguest is defined as a guest temporarily residing in a member’s home in the Community. All other guests of a member shall be considered day guests.
Houseguests and day guests must be accompanied by the sponsoring member, the Head Golf Professional or a member of the Host Committee when using the golf facility and by the sponsoring member when using any other facility of the Club, unless otherwise determined by the Club from time to time, and in accordance with the rules and regulations relating to guests and upon payment of the applicable daily guest fees and/or daily guest charges.
Houseguests may use the remainder of the Club Facilities unaccompanied by the member, in accordance with the rules and regulations relating to guests and upon payment of the applicable daily guest fees and/or daily guest charges. Houseguests may be charged a temporary houseguest membership fee for each weekly period in addition to all daily use fees as determined from time to time by the Board of Directors.
Members may not allow the use of their home or membership as part of any employee incentive compensation package.
ARTICLE XIII
DUES, FEES AND CHARGES
1. DUES AND FEES
Prior to the Turnover Date, the dues for use of the Club Facilities will be reasonable in comparison to comparable clubs. After the Turnover Date, the Board of Directors reserves the right to set the amount of dues to be payable by members at any level deemed appropriate. The amount of dues for subsequent years is subject to change. The Club also reserves the right to charge food and beverage minimums from time to time.
All dues and fees will be applied against the Club’s operating costs, including debt service. It will be the policy of the Club that the annual and all other dues, plus other receipts by the Club, will be sufficient, insofar as possible to project, to meet the annual operating needs of the Club. The monthly and other dues, as they are established from time to time by the Board of Directors, will, insofar as possible, reflect this stated policy.
Dues, plus any applicable taxes, will be due and payable annually, or on such other basis as determined from time to time by the Club. Except as otherwise provided for herein, memberships which terminate during the membership year are not entitled to a refund of any dues.
When a membership is issued in more than one name, each individual will be jointly and severally liable for all dues, fees, other charges and liabilities associated with such membership. Neither individual will be discharged or released from liability for prior dues, fees, other charges and liabilities but may be released from liability for subsequent dues, fees, other charges and liabilities when notice is received by the Club of a member’s desire to be released from such liability, coupled with the resignation of such member.
Dues will not be imposed on any membership during the period while it is held by the Company.
2. ASSESSMENTS
Members of the Club will not be assessed for operating deficits prior to the Turnover Date. However, the Board of Directors of the Club may find it necessary to make assessments, in addition to dues, to cover any operating deficits which occur after the Turnover Date. Any assessments to cover operating deficits will be prorated among Equity Members of the Club based on the amount of dues charged each member during the year in which the deficit occurs.
There will be no assessments for capital expenditures unless a majority of the votes entitled to be cast by Equity Members vote in favor of the capital assessment, except that assessments required to pay extraordinary unbudgeted repairs, maintenance or replacements that are necessary for the continued operation of any of the Club Facilities or any material part thereof, do not require member approval. Assessments for capital expenditures on the golf course and tennis facilities shall be voted upon by the Golf and Sports Members and shall be paid by the Golf and Sports Members. Each Sports Member will pay 40% of the assessment paid by a Golf Member for a capital expenditure on the golf course. Assessments for capital expenditures for the tennis courts or swimming pool facilities will be paid equally among Golf and Sports Members. Social Members shall not pay any assessments for a capital expenditure on the golf course or tennis facilities. All other assessments for capital expenditures shall be voted upon by all Equity Members of the Club and shall be paid equally among all Equity Members.
The Club will not make any capital or operating assessments or impose any dues or other charges on any Equity Membership during the period while the Equity Membership is held by the Company or the Club except for Equity Memberships which the Company purchases from the Club. A member acquiring Equity Membership from the Company shall not be subject to payment of any capital or operating assessment imposed or incurred prior to their becoming a member.
ARTICLE XIV
DELINQUENCIES
1. STATEMENT
An itemized statement of any dues and assessments and current charges shall be mailed monthly to each member and any such statement which is not paid in full to the Club within thirty (30) days from the date of such statement shall be deemed delinquent. Delinquent statements will accrue a service charge of one and one-half percent (1½%) per month from the date of the statement until paid in full. Members who have a delinquent account shall be subject to such action as is determined appropriate by the Board of Directors. The failure of any member to pay dues within the prescribed period shall constitute grounds for forfeiture of such member’s membership in the Club.
2. LIENS
The Club will have a lien against each membership for any unpaid annual dues, assessments, other charges made by any member of the Club and costs advanced by the Club on behalf of the member (by virtue of a guarantee of payment or otherwise), which lien will also accrue reasonable attorneys’ fees incurred by the Club incident to the collection of such amounts, or the enforcement of such lien, whether or not legal proceedings are initiated. This lien may, but need not be, recorded among the public records, by filing a claim therein which states the name of the member, the number of the membership and the amount claimed to be due, and said lien will continue in effect until all sums secured by the lien, together with all costs incurred in recording and enforcing said lien, will have been paid. Such claims of lien may be signed by an officer of the Club. This lien shall survive resignation of the member. Upon full payment, the member making payment will be entitled to be reinstated as a member in good standing of the Club and will be entitled to a satisfaction of lien to be prepared and recorded at the member’s expense. All such liens may be foreclosed by the Club, in any action at law or in resident, or without legal proceedings upon five (5) days prior written notice of intended foreclosure, as may be deemed appropriate by the Club. The Club may also, at its option, sue to recover a money judgment for unpaid dues, other charges or costs advanced, without thereby waiving the lien securing the same.
No member shall be permitted to create, incur, assume or suffer to exist upon such member’s membership any liens and security interests whatsoever except to the extent such lien and security interest represents a purchase money lien or security interest incurred as a result of acquiring the membership in favor of the Club or the Company.
ARTICLE XV
DISCIPLINE
1. GENERAL
Any member or any family member or guest of such member whose conduct shall be deemed by the Board of Directors to be improper or likely to endanger the welfare, safety, harmony or good reputation of the Club or its members, may be reprimanded, fined, suspended or expelled from the Club by action of the Board of Directors. The Board of Directors shall be the sole judge of what constitutes improper conduct or conduct likely to endanger the welfare, safety, harmony or good reputation of the Club or its members.
2. BOARD ACTION
A member shall be notified of any proposed disciplinary action and shall be given an opportunity to be heard by the Board of Directors to show cause why such member should not be disciplined in accordance with this Article. If the member desires to be heard, the member must provide a written request for a hearing to the Board of Directors within thirty (30) days of the date of the Club’s notice to the member of the proposed action. Upon the Board’s receipt of the written request for a hearing, the Board of Directors shall set a time and date not less than ten (10) days thereafter for such hearing. While such complaint is being considered by the Board of Directors, the member shall enjoy all privileges of the Club to which the member was entitled prior to such complaint, in the discretion of the Club.
3. SUSPENSION
The Board of Directors may suspend a member or any family member or guest of such member from some or all of the privileges of the Club for a period of up to one (l) year. Dues and other obligations shall accrue during such suspension and must be paid in full when due.
4. RESIGNATION–REQUEST BY BOARD
The Board of Directors may, by a two-thirds (2/3) vote of the directors present, request the resignation of any member of the Club for cause deemed sufficient by the Board of Directors.
5. EXPULSION
A member may be expelled by the Club if, by two-thirds (2/3) vote, the Board of Directors determines that the member’s conduct was improper or likely to endanger the welfare, safety, harmony or good reputation of the Club or its members. Any member of the Club who has been expelled shall not again be eligible for membership nor admitted to the Club’s property under any circumstances as determined by the Club in its sole discretion. A member who has been expelled from the Club may forfeit his or her membership in the Club and in the sole discretion of the Board of Directors, may not be entitled to the return of any membership contribution or other dues and fees previously paid to the Club. An expelled member shall be notified by registered mail and shall have the obligation to surrender such member’s membership and at the option of the Club in its sole discretion, shall forfeit all rights and privileges of membership, including, but not limited to, (a) the right of the buyer of such member’s residential home or homesite to acquire a membership in the Club as provided in these Bylaws, and (b) the right to sell such member’s membership back to the Club as provided in these Bylaws.
ARTICLE XVI
CORPORATE SEAL
The Corporate Seal of the Club shall be circular in form and shall have inscribed thereon the name of the corporation and the words “seal,” “Montana,” “Corporation Not-for-Profit” and the year of incorporation. The corporate seal shall be in the possession of the Secretary of the Club and be affixed by the Secretary to all documents relating to the official acts of the Club, as authorized by the Board of Directors.
ARTICLE XVII
MISCELLANEOUS
1. FISCAL YEAR
The fiscal year of the Club shall commence on the first (1st) day of July and conclude on the thirtieth (30th) day of June.
2. CONFLICT BETWEEN BYLAWS AND ARTICLES OF INCORPORATION
In the event of a conflict between the terms of these Bylaws and the Articles of Incorporation, the latter will prevail.
3. DISSOLUTION OR LIQUIDATION
In the event of dissolution or final liquidation of the Club, all of the property and assets of the Club, after payment of its debts, will be distributed, as permitted by Montana law or a court having jurisdiction, among the holders of the Equity Memberships of the Club, including the Company with respect to memberships held by the Company, in proportion to the value of the memberships as last established and the fair market value of the Company Memberships.
4. MAILING ADDRESS
Each member shall be responsible for filing with the Membership Office, in writing, preferably on a form provided by the Club, his or her mailing address and any changes thereto, where the member wishes all notices and invoices of the Club to be sent. A member shall be deemed to have received mailings from the Club ten (10) days after they have been mailed to the address on file with the Club. In the absence of an address on file at the Membership Office, any Club mailing may, with the same effect described above, be addressed as the General Manager may think is most likely to cause its prompt delivery. The Club must be notified in writing of any change of address. Failure to do so shall constitute a waiver of the right to receive club notices, bulletins and any other communications, and a violation of these rules.
ARTICLE XVIII
AMENDMENTS
1. PRIOR TO TURNOVER DATE
Prior to the Turnover Date, the Membership Plan, including these Bylaws and the Articles of Incorporation may be altered or amended by the Board of Directors of the Club. The Board of Directors may not make any change to the Membership Plan, including these Bylaws and the Articles of Incorporation, that is materially adverse to the rights of the Equity Members without the approval of a majority of the votes entitled to be cast by the Equity Members.
2. AFTER TURNOVER DATE
After the Turnover Date and until the sale of all of the Equity Memberships, the Articles of Incorporation and Bylaws of the Club may not be changed without the prior written consent of the Company, which consent may be withheld by the Company for any reason whatsoever. Thereafter, the Club may modify its Articles of Incorporation and Bylaws as provided in the Articles of Incorporation and these Bylaws; provided, however, that the Club will not change its Articles of Incorporation or Bylaws as they exist as of the Turnover Date with respect to the following, without the prior written consent of the Company, which approval may be withheld by the Company for any reason whatsoever: (a) the eligibility to acquire an Equity Membership, (b) the total number of members allowed in any category of membership or the termination or modification of the privileges of any category of membership, (c) the restrictions or limitations on assessment of membership for dues, charges and assessments, (d) the use privileges associated with any category of Equity Membership, (e) the rights associated with the Charter Memberships, (f) the rights of owners of a home or homesite in the Community who are Equity Members of the Club to arrange for transfer of memberships to subsequent purchasers, or (g) this section of the Bylaws.
3. PROCEDURE FOR AMENDMENTS BY BOARD OF DIRECTORS
In the event these Bylaws or the Articles of Incorporation are to be altered or amended by the Board of Directors, such action must be taken at any regular or special meeting of the Board of Directors, provided that the amendment or alteration will be set forth in the notice of the meeting at which the matter is to be acted upon and provided that two-thirds (2/3) of all of the members of the Board of Directors approve the amendment or alteration.
4. PROCEDURE FOR AMENDMENTS BY MEMBERS
In the event these Bylaws or the Articles of Incorporation of the Club are to be altered, amended or repealed by members in accordance with the above, or new Bylaws or Articles of Incorporation are to be adopted by members, the following procedure will be required: (a) a vote of a majority of all of the members of the Board of Directors, and (b) a majority of the votes cast by the members of the Club entitled to vote, in person or by proxy, at any duly called and constituted annual or special meeting of the members of the Club at which a quorum of the voting members is present. A proposed amendment must be set forth in the notice of the meeting.
ARTICLE XIX
DISPUTE RESOLUTION
Each and every dispute, claim or other matter of disagreement concerning the rights, obligations or remedies among the Club, its officers, directors, affiliates and any Club member or applicant for membership relating to or arising out of the Membership Plan, Bylaws or the Rules and Regulations or any transaction contemplated by the Membership Plan, Bylaws or Rules and Regulations, but not involving a disciplinary matter, or non-payment or a personal injury claim against the Company or the Club, shall only be decided by mediation, and if necessary, arbitration. The dispute resolution procedure described herein shall be the sole remedy available to the parties involved; provided, however, that the Club shall have the right to collect, through a court proceeding, any Club account or other amount owing as a result of loss or destruction of the Club’s property or injury caused to any party by a Club member.
In the event there is any such dispute, the same shall be resolved in the following manner:
MEDIATION.
Within ten (10) days after the receipt of notice of a dispute by one party from the other, the parties shall attempt in good faith to negotiate for a period of thirty (30) days in an effort to resolve the dispute;
If the parties are unable to resolve the dispute within such thirty (30) day period, they shall retain a mutually acceptable mediator (i.e., a partner or principal of an accounting, consulting, legal or engineering firm with experience in the country club industry) to assist them in resolving the dispute within ten (10) additional days, failing which they shall each retain a mediator within ten additional days and the two mediators thus chosen shall together act as the mediator for the purpose of this paragraph. If either party shall fail to appoint a mediator as required hereunder, the mediator appointed by the other party shall be the sole mediator. Within thirty (30) days after the mediators (or such single mediator) have been retained, the mediators (or such single mediator) shall, on a non-binding basis, advise the parties in writing of their views. The fees and expenses of the mediators (or such single mediator) shall be borne equally; and
If the parties are still unable to resolve the dispute within such thirty (30) day period, the parties shall resort to the arbitration procedures set forth below.
ARBITRATION.
Either party may submit the matter to binding arbitration. In any such arbitration the parties agree that there shall be only one (1) arbitrator, that such arbitrator will be selected by the Club with the only limitations on such selection being that such arbitrator must be qualified by experience, education or training in country club operations. The arbitrator shall be selected by the Club within ten (10) days after the arbitration provision is invoked. The arbitration proceeding shall be held in Flathead County, Montana and shall be governed by the commercial arbitration rules of the American Arbitration Association then in force, except as otherwise provided by Montana law.
Each party shall submit a proposal setting forth its resolution of the issue(s) submitted to arbitration within ten (10) days after notice of selection of the arbitrator. The decision of the arbitrator, where appropriate, shall take into account the operation of the Club Facilities in comparison to the operation of other similar clubs. The arbitrator shall investigate the facts and shall hold hearings at which the parties may present evidence and arguments, be represented by counsel and conduct cross examination. The arbitrator shall render a written decision upon the matter presented within thirty (30) days after the date upon which the last party submitted its proposal to the arbitrator, and such decision shall be final and conclusive upon all parties.
Judgment upon the award rendered in such arbitration shall be entered by any court having jurisdiction thereof, and the judgment shall be entered unless the award is vacated, modified or corrected as provided by law.
The parties shall advance on an equal basis any necessary costs of the arbitration, such as reporter’s fees and arbitrator’s fees. The prevailing party, as determined by the arbitrator, shall be entitled to recover as part of the award all such advanced costs and reasonable attorneys’ fees and related costs, fees or expenses of the arbitration. In the event of any dispute over any such fees and costs, each party may apply to the arbitrator within thirty (30) days of the decision on the merits for a determination of an award of fees, costs and expenses. The arbitrator shall enter an award on such application within thirty (30) days from its receipt, without a hearing, but with consideration of any factual materials or brief submitted by the parties, and such award shall be paid within thirty (30) days from the date of such award. Any time period set by this paragraph may be shortened or extended by the mutual agreement of the parties to the arbitration.
If any court or arbitrator shall find any provision of this paragraph to be in violation of or in contradiction to Montana law, the parties agree such provision or provisions shall be void but all other provisions of this paragraph shall remain in effect. Should any member bring suit against the Club or others in contravention of this arbitration mandate, all costs and expenses incurred by the Club or others in the defense of such suit, including court costs, attorneys’ fees and other costs including para-professional fees and travel costs through all trial and appellate proceedings, shall be recoverable as part of the arbitration award.